England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/03/2009

HIS HONOUR JUDGE FARMER QC

1. This application by the Claimant, Johnson Brothers, raises the issue of the construction of a Decision Letter dated 1^st August 2007 in which Mr BS Rogers BA (Hons) DIP TP, MRTPI dismissed the Claimant's planning appeal brought under section 78 of the Town and Country Planning Act 1990. It also raises alleged procedural irregularities which occurred during the hearing of the appeal between the 3^rd and 6^th July 2007 and seeks permission to rely upon the further statement from Mr SG Golby which was filed on or after the 8^th September 2008. Mr Ian Dove QC and Richard Kimblin appeared for the Claimant at the hearing of the appeal and in the hearing before me. Counsel for the Secretary of State was Mr Rupert Warren and the interested party was represented by Mr Peter Goatley, who also appeared for the interested party, Wychavon District Council, at the appeal.

THE FACTUAL BACKGROUND

2. Honeybourne Airfield Industrial Estate is a former World War Two airfield some 28 hectares in extent, of which 16 hectares is undeveloped.
3. The Claimant wishes to develop about 18,859 square metres of the airfield by erecting new storage and distribution units and by carrying out associated works whereby parking, landscaping and access will be provided. Wychavon District Council, the local planning authority, considered and dismissed the application on the 10^th August 2006.
4. The site is described in the Decision Letter as "being in an isolated rural location, remote from its two neighbouring small villages, which have a very limited range of services and other facilities. It has no convenient footpath links and no convenient access by public transport; the nearest bus and rail stops are around 1.6 kilometres and 2.4 kilometres respectively [sic]": see volume 1 of the Trial Bundle at page 12, paragraph 9.
5. The site is subject to Local Plan Policy ECON 1, which reads as follows:

"ECON 1 PROTECTION OF EXISTING EMPLOYMENT LAND:

Proposals for the change of use or redevelopment of land or premises identified for or currently in employment use will not be permitted unless:

(a) there is a sufficient supply of sites for a range of employment uses to meet both immediate and longer term requirements over the Plan period; and

(b) the applicant can demonstrate that the site/premises is no longer capable of meeting employment needs; or

(c) development of the site for other appropriate uses will facilitate the relocation of an existing business to a more suitable site; or

(d) unacceptable environmental problems are associated with the current use of the site and the proposal to remove them; or

(e) the use is ancillary to an employment use; or

(f) the site is located in the town centre and the proposed use will contribute to the vitality and viability of the centre or forms part of a regeneration project.

6.2.1 The supply of employment land in the district is made up of the core sites identified under the previous policy, together with smaller unidentified sites which frequently accommodate valuable employment uses within the towns or in the rural area. It is important that the policies in this Plan seek to protect employment land to ensure that there is sufficient land in a range of locations to cater for the different land/locational requirements of a variety of business uses. Employment land can often be subject to pressure to accommodate alternative uses. Once lost, however, it will be difficult to replace it. The Counsel is limited in terms of the amount of land it can make available for such development. The incremental loss of employment land will erode the variety of sites/premises necessary for a strong employment base. The Council is particularly concerned about pressure to redevelop both small scale local employment sites for non-employment purposes within the urban area and villages which add to the important mixture of uses necessary for communities in the District.

6.2.2 To ensure that the District can accommodate and retain a range of employment uses, this Plan will protect all employment sites to ensure that the balanced range in terms of size and location is retained. Proposals for the loss of any employment site will be considered, in the first instance, in the terms of the quantitative and qualitative effect the proposed loss would have on this supply, and proposals that would have a detrimental effect individually or cumulatively will be refused. Where a proposal is considered not to have a detrimental effect on the supply of sites, applicants will still be required to demonstrate that there are overriding reasons why the land should be developed to other uses by satisfying any of the criteria (b) – (f) outlined in the Policy. This may include the requirement for a site to have been continuously marketed for a minimum of 18 months, to demonstrate that the site/premises is no longer capable of meeting employment needs.

6.2.3 It is important that once land is allocated for industrial or business uses that, subject to other plan policies, in particular policy GD1, policy GD2, policy SR5, policy ENV1, and policy ECON 2, new development should be directed towards it. Proposals for additional employment use within the town centre settlements are generally supported where they accord with other plan policies:"

See Trial bundle volume 1 pages 72 – 73.

6. Policy ECON 2, which immediately follows, provides:

"ECON 2 EXPANSION OF EXISTING RURAL EMPLOYMENT SITES:

Outside defined development boundaries, proposals for the expansion of existing employment sites and/or uses will be permitted, providing:

(a) the site/uses currently operating without significant harm to its surroundings and the rural environment;

(b) the proposal is for the reasonable and limited needs for expansion of an existing business or businesses; and

(c) the site and its surroundings can accommodate such limited expansion without significant harm to the character, appearance or amenity of the area.

6.2.4 Wychavon has a large number of employment sites, including some protected by Policy ECON 1, and uses in rural locations. Although the strategy of the Plan is primarily urban focussed (and would not normally direct development to such areas), the continued viability of the existing businesses is important to the local economy. Such proposals, however, will only be permitted on sites or for businesses that are currently operating without any significant adverse impact. Furthermore, mindful of their rural location and in order to minimise adverse impacts and ensure acceptable design solutions, proposals should be minor and should not lead to a level of use that it beyond the capacity of the site, the surrounding area or the wider landscape. This Policy is not intended to apply to larger more strategic sites outside settlements such as those allocated under Policy SR2. This policy does not apply to the Plan's principal employment allocations under policy SR2 at Throckmorton Airfield and Vale Park (Phase 2)."

See Trial bundle volume 1, pages 73-74.

7. The Claimant's contention in their closing submissions on behalf of the appellants at the appeal were as follows:

"IS THE DEVELOPMENT CONSISTENT WITH THE DEVELOPMENT PLAN POLICY?

5. In making this assessment, it is perhaps sensible to start with the most site specific element of the Development Plan namely the Local Plan. As is well known, the site is identified by ECON 1 as a site which is to be protected and safeguarded for employment use. That policy also identifies it as part of the council's employment land supply or their employment land portfolio.

6. This is to all practical intents and purposes an allocation for employment use. That is not simply the contention of the Appellant but it is the language of the policy in the recent justification at paragraph 6.2.3, which describes such land as being allocated to employment use, and is the language used by the committee report of the Council in considering this application. Most importantly, the policy clearly applies not only to buildings but also to land. Thus, the land within the curtilage of the site is as protected as the buildings in terms of the requirement to retain them in employment use. Thus, the whole site is allocated for employment purposes.

7. There are a number of implications of the policy designation. The first of these is that it must follow that the site is suitable and appropriate for employment use. Why would the existing activities on the site be in any way protected if it was an unsuitable site for employment? If it were properly to be regarded as an unsuitable site, then the sensible approach would have been for the council to have washed the countryside designation over the site which would have precluded any further development upon it and would have ensured that, as and when development drifted away from the site because it would be unable to expand, the site would whither on the vine. This was not the approach that the council took. They identified it as an appropriate location to protect existing employment and, in the language of the recent justification to the policy, to direct new employment development to it. Thus, it is impossible for the council to contend that this is an unsuitable site.

8. Of equal importance is the implication of the policy that the land and the buildings at the site are required for employment purposes. There would be no need to safeguard the land if it were not so required. When cross-examined, Mrs Collin was unable to provide any sensible explanation as to why one would protect a site if it were not either suitable or required. Clearly, the purpose of applying the notation is to safeguard it for employment uses and to prevent it being used for any other employment purpose. She corroborated that position when she accepted that, if some other, non-employment use were proposed on the land, it would be resisted for at the very least being contrary to ECON 1."

See Trial Bundle volume 2 pages 459 – 460.

8. On behalf of the local planning authority it was said in closing:

"MAIN ISSUES (ONE) AND (THREE)

11. I deal with main issues one and three together.

12. It is agreed between the parties that the site is identified in the Adopted Local Plan as a site subject to the policy ECON 1.

13. There was some debate as to whether or not this constituted (as contended for by the appellants) an "allocation". With respect, save upon the most tortured interpretation of this policy, it is clear that it is simply protective of "land or premises identified for or currently in employment use" save in certain specified circumstances. It does not constitute an allocation as that is clearly dealt with pursuant to policy SR2 of the Local Plan and where the two allocations made are as Vale Park and Throckmorton.

14. There is clearly a material difference between an allocation and a protective policy which is spread over numerous sites which are subject to that ECON 1. notation. Indeed, as Mrs Collin pointed out (xc and xx) if the appellant's contention were true then the amount of land then said to be "allocated" for employment use under the Local Plan would, in addition to the SR2 Sites also comprise the as yet undeveloped components of all the sites subject to the ECON1 and designation. In aggregate she told us that these sites amounted to some 460 hectares of which around only 114 hectares had been developed, indicating something near to 350 hectares said to be allocated for employment use. In context (sic) of the strategic requirement currently contained in the structure plan for 110 hectares then there would be marked and material imbalance between the two.

15. In any event whatever be the history relating to the identification ECON 1 and sites, it simply provides a protection to those sites and does not as such say anything as to their suitability to accept new development. With respect, that is the objective of the appeal proposals.

16. Indeed, as paragraph 6.2.3 of the Local Plan makes clear, even land which is said to be allocated for industry or business uses must be subject to the other plan policies in particular GD1, GD2, Policy SR5, Policy ENV 1 and Policy ECON 2."

See Trial Bundle 2 pp 443 – 444.

9. In his decision letter the Inspector dealt with policy ECON 1 as follows:

"13. Therefore, although the proposal would not conflict with ECON 1 in that it does not seek an alternative use, other than for employment purposes, it is my view that the policy does not tell to any great extent in favour of the proposal. Furthermore, my conclusion that the undeveloped part of the site should not be regarded as previously developable land diminishes the claimed sustainability credentials of the appeal proposal. As a result, LP Policy ECON 2 concerning the expansion of existing rural employment sites falls to be considered. The appeal site is not an exception to this policy as, whilst it can reasonably be described as 'larger', is clearly not 'more strategic' in nature.

14. Policy ECON 2 allows for the expansion of existing rural employment sites and/or uses, subject to three criteria. Criteria (a) and (c) will be considered further under the last two main issues albeit that I conclude there that the present sites/use is harmful to its surroundings both in visual terms and arising from HGV and movements. Criterion (b) requires the proposal to be for the reasonable unlimited needs for expansion of an existing business or businesses. There was debate at the enquiry as to the meaning of 'limited'. However, the reasoned justification states that the proposals should be 'minor' and that interpretation of 'limited' appears consistent with its use in PPS 7.

15. In my view, a proposal to almost double the present floor space on site cannot sensibly fall within the above definition. Even if it did, there is no compelling evidence that either the existing businesses need to expand or that they need to expand on this site. Whilst I do not doubt that many enquiries have been made to develop here and I note the desire for commercial confidentiality, the evidence provided by the appellants did not allow any realistic examination of the expansion needs of any existing businesses in terms of site or location. Had there been no objection to the principle of development, this would not have been an issue. However, ECON 2 requires justification to be provided.

16. On the evidence provided I am not able to conclude that there is a shortfall of suitable employment land in the District as a whole or in the vale of Eavesham in particular. In quantitative terms, past provision in the early years of the LP fell behind the average rate required to meet the SP requirement, there has been a recent increase in provision and the likelihood of an enhanced rate of provision when Vale Park and Stockmorton continue to be developed.

17. In qualitative terms, there is a need to provide a range of sites, albeit that the RSS did not require the full range in every District. Of note here is that the appeal side is close to the boundary with two neighbouring Districts, where suitable local sites may also be located. Moreover, there has been no sequential analysis of whether any identified need for employment land could be provided in more sustainable locations, closer to larger settlements and the trunk road network. Therefore, even though the site might with improvement, be termed 'good quality' as defined by RSS Policy PA6, the disadvantages of its poor accessibility are of greater significance than a potential shortfall of 'good quality' land, which could be addressed in more sustainable locations.

18. There are benefits associated with the proposal which must be weighed in its favour on this issue. These include a Workplace Travel Plan, which forms part of the Unilateral Undertaking referred to in paragraph .2 above. However, whilst such a scheme is desirable in principle, and would seek to alter the travel modes of a proportion of the additional car-borne workforce, there would still be likely to be a significant increase in the number of car-borne commuters compared to the present situation. Whether the Travel Plan would have spin-off benefits for existing workforce [sic] and those on other nearby employment sites is conjectural. The landscaping provisions would be likely to improve the environment before European protected species. However, neither of these outweigh the harm of locating an unsuitable scale of development in a remote, rural location such as this. I conclude on the first main issue that the proposal would conflict with LP and Policy ECON 2 and with National, Regional and Local Policy to promote sustainable forms of development."

See Trial bundle 1 p13 et seq.

10. During the appeal Mr Dove wished to cross-examine Mrs Eileen Ann Marshall, the Local Planning Authority's landscape officer. At Trial Bundle 1 page 396 she sets out her conclusions and produces at Appendices 2 and 3 by way of photographs evidence taken in March and May of 2007 and a plan showing photo view points. At the appeal, when Mr Dove wished to cross-examine Mrs Marshall about the issue of photograph view points, on the evidence placed before me, the Inspector intervened , as Trial Bundle 1 page 7 shows, as follows:

"DOVE: Looking at the photographs of both Winter and Summer, the views were enhanced with a zoom lens

MARSHALL: Only a 70 is used so there is only a small zoom effect

INSPECTOR: As previously, I don't want to go through each view. I will be able to see on sight whether the photographs have been altered.

DOVE: It's important I ask but if you don't want me to I will have to deal with them in Mr Peachey's evidence.

(Inspector reiterates he will see things himself)

DOVE: I don't want to be criticised by others that I didn't put the questions to the witness or she didn't have the chance to answer.

INSPECTOR: I will do that.

DOVE: I was thinking about someone to my left.

DOVE: If I can't ask I will have to deal with it in submissions.

INSPECTOR: I'm sufficiently experienced to look and know whether people have stood in a gap in a 20 metre hedge.

DOVE: OK."

Mr Dove complains that this intervention was a breach of natural justice, and this complaint is the basis of ground 3 of the claim, grounds 1 and 2 being based upon what Mr Dove alleges is a misconstruction and misapplication of the relevant planning policies. All the grounds are contested.

THE RELEVANT LAW

11. I was referred to a number of authorities which relate to the issue of how planning policies are to be construed and issues relating to procedure/natural justice. These authorities are well known, were helpfully copied for my use by counsel and, in those circumstances, I do not propose to refer to them individually, rather to summarise what I conceive to be their effect under two heads, "The Construction Issue" and "The Procedural Issue".

THE CONSTRUCTION ISSUE:

12. Lord Steyn in R v McFarland [2004] 1 WLR 1289 at paragraph 24 articulated one view of the construction issue in this way:

"This is not to say that policy statements must be construed like primary or subordinate legislation. It seems sensible that a broader and wholly untechnical approach should prevail. But what is involved is still an interpretative process conducted by a court which must necessarily be approached objectively and without speculation about what a particular minister may have had in mind."

Lord Justice Sedley in The First Secretary of State & another v Sainsbury's Supermarkets Limited [2005] EWCA Civ 520 at paragraph 16 said:

"Thirdly the interpretation of policy is not a matter for the Secretary of State. What a policy means is what it says. Except in the occasional case where a policy has been ambiguously or unclearly expressed (see R v. Derbyshire CC, ex p. Woods [1997] JPL 958), so that its maker has to amplify rather than interpret it, ministers are not entitled to thwart legitimate expectations by putting a strained or unconventional meaning on it. But what ministers do have both the power and the obligation to do – and Miss Lieven readily acknowledged that this is her real point – is to apply their policy from case to case, keeping in balance the counter veiling principles (a) that a policy is not a rule but a guide and (b) that like causes ought to be treated alike."

13. In Fordham's Judicial Review Handbook Fourth Edition, the question is posed whether the construction of policy guidance is "a hard edged question" or a question to be resolved by adopting a more "soft edged" approach and various authorities are reviewed. Whilst recognising the distinction the author identifies, it seems unnecessary for me to attempt to resolve the issue further than it has been resolved already. The approach of Lord Steyn to which I have referred is not inconsistent in my judgment with the court's retaining the ultimate responsibility for construction whilst recognising that "a broader and wholly untechnical approach" to construction may be part of that process. Sir Thomas Bingham M.R., as he then was, said in R v. Director of Rail Passenger Rail Franchising, ex parte Save Our Railways [1996] CLC 589 at 601D:

"The court cannot … in case of dispute, abdicate its responsibility to give the document its proper meaning. It means what it means. Not what anyone would like it to mean."

This does not import an overly technical or captious approach. Lord Justice Hoffman, as he then was, in South Somerset District Council v. Secretary of State for the Environment and Another [1993] 11 PLR 80, at 83D:

"On the other hand, as Forbes J. said in Seven Properties Limited v. Secretary of State for the Environment [1978] 42 P & CR 26 at page 28:

" … it is no part of the court's duties to subject the decision letter to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute. Because the letter is addressed to the parties who are well aware of all the issues involved and of the arguments deployed at the enquiry it is not necessary to rehearse every argument relating to each matter in every paragraph."

The Inspector is not writing an examination paper on current and draft development plans. The letter must be read in good faith and references to policies must be taken in the context of the general thrust of the Inspector's reasoning. A reference to the policy does not necessarily mean that it played a significant part in the reasoning: it may have been mentioned only because it was urged on the Inspector by one of the representatives of the parties and he wanted to make it clear that he had not overlooked it. Sometimes his statement of the policy may be elliptical but this does not necessarily show misunderstanding. One must look at what the Inspector thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood a relevant policy or proposed alteration to policy.

14. As to planning issues, and my approach to them, that is again guided by Lord Hoffman in Tesco v. Environment Secretary [1995] 1 WLR 759 at 780E under the rubric:

"Materiality and Planning Merits":

"The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the Planning Authority. Provided that the Planning Authority has regard to all material considerations, it is at liberty (provided that it does not lapse into WEDNESBURY irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision making process.

This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British Planning Law, namely that the court's are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State."

THE PROCEDURAL ISSUE:

15. In Bushell & Another v. Secretary of State for The Environment [1981] AC 75 at page 97 Lord Diplock said at B in relation to local inquiries and planning inquiries:

"To 'over-due judicialise' the enquiry by insisting on observance of the procedures of the court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair. It would, in my view, be quite voracious to propose that at an enquiry of this kind the only fair way of ascertaining matters of fact and expert opinion is by the oral testimony of witnesses who are subjected to cross-examination on behalf of parties who disagree with what they have said. Such procedure is peculiar to litigation conducted in courts that follow the common law system of procedure; it plays no part in the procedure of courts of justice under legal systems based upon the civil law, including the majority of our fellow member states of the European Community; even in our own Admiralty Court it is not availed of for the purpose of ascertaining expert opinion on questions of navigation – the judge acquires information about this by private enquiry of assessors who are not subject to cross-examination by the parties. So refusal by an Inspector to allow a party to cross-examine orally at a local enquiry a person who has made statements of facts or has expressed expert opinions is not unfair per se.

When fairness requires an Inspector to permit a person who has made statements on matters of fact or opinion, whether expert or otherwise, to be cross-examined by a party to the enquiry who wishes to dispute a particular statement must depend on all circumstances. In the instant case, the question arises in connection with expert opinion upon a technical matter. Here the relevant circumstances in considering whether fairness requires that cross-examination should be allowed include the nature of the topic upon which the opinion is expressed, the qualifications of the maker of the statement to deal with that topic, the forensic competence of the proposed cross-examiner, and, most important, the Inspector's own views as to whether the likelihood of cross-examination will enable him to make a report which will be more useful to the minister in reaching his decision than it otherwise would be is sufficient to justify any expense and inconvenience to other parties to the enquiry which would be caused by any resulting prolongation of it."

That discretion which Lord Diplock recognised and formulated is enshrined in the inquiry procedure rules which govern procedure at this appeal. In my judgment, the issue which falls to be considered, following the guidance provided by Lord Diplock is whether the Claimant, in this case through counsel, had a proper and fair opportunity to canvass and pursue relevant issues at the appeal. That issue must be viewed in the light of the discretion to which Lord Diplock referred and which exists by virtue of the rules governing the appeal.

16. I turn now to consider the grounds as set out in the claim.

GROUND ONE:

17. The Inspector concluded that policy ECON 1 was a material consideration. As I understand it there is no challenge to this conclusion. It follows, applying the TESCO case, that the weight to be given to the material consideration was a matter for him in the exercise of his planning judgment. In the exercise of that judgment he concluded that the policy "does not tell to any great extent in favour of the proposal." As I understand the complaint of the Claimant, what is alleged is that his conclusion as to weight was flawed because he fundamentally misunderstood and misconstrued the policy, since, if he had construed it correctly, he would have attributed much greater, if not conclusive, weight to it.
18. It is clear that the Inspector, as the Decision Letter shows, had in mind the Claimant's submissions when construing and applying the policy: see paragraph 10 of the decision letter:

"With regard to the interpretation of the Proposals Map and the Policy ECON 1, the debate at the inquiry suggests that the LP lacks the desirable level of clarity; at issue is whether this should be seen as an allocation or a protective designation. Having regard to the LP as a whole and to the way in which Policy ECON 1 and its reasoned justification are phrased, I agree with the Council that this policy should be seen as essentially protecting against the change to an alternative use other than employment rather than as an allocation for new development. The present employment uses on this site are a valuable part of the local economy and merit protection for that reason. The District's employment base is made up of existing sites, including 'core sites' such as this, and the SP employment land requirements; the latter is met by allocations set out in LP Policy SR 2."

Mr Dove points out in his submissions that the word 'allocated' is used in paragraph 6.2.3 of ECON 1. Whilst it is true that the terminology of ECON 1. is not consistent in that 'identified' is used in earlier parts of the policy, I have to bear in mind that it is not to be construed as a statute or a contract. I bear in mind that paragraph 6.2.3 speaks of the situation which arises "once land is allocated for industrial or business uses" and of what must occur in that situation subject to relevant policies: see Trial Bundle 1 page 73. Policy SR 2 appears at Trial Bundle 1 page 61, 2.4.11. as follows:

"Policy SR2 identifies that element of the District's employment land supply and site to be allocated during the plan period. Existing sites are identified and/or effected through policy ECON 1. Together, these sites cater for a range of uses of varying sizes, geographically well spread throughout the District with many well located in relation to the towns. They are generally well used and successful, and are significant sources of local employment. For these reasons the Plan will protect this range of sites to meet the requirements of existing and future businesses."

At page 62, policy SR2 EMPLOYMENT LAND SUPPLY is set out. The policy provides:

"Sufficient land will be provided in the District to enable the construction of 110 hectares of employment land in B1, B2 and B8 uses between April 1996 and March 2011. The residual element of this requirement plus additional land to meet specific employment needs will be met through allocations. The allocations will comprise the following sites identified on the Proposals Map."

There follow then two tables setting out various sites, and the final rubric:

"All sites identified under parts 1 and 2 will be retained for employment use throughout the Plan Period unless proposals comply with the provisions of policy ECON 1 (Employment Land)."

Thus, the policy contemplates in my judgment "sites identified" from which "allocations" will be made. This distinction does not support Mr Dove's submission that "identification" is equivalent to "allocation": rather it supports the Inspector's construction and the constructions advocated in the Secretary of State's skeleton argument. In my judgment the Inspector was right to regard policy ECON 1 as essentially "protective" as paragraph 10 shows. The evidence before the Inspector that land "identified" amounted to an area much greater than land "allocated" again supports the construction that what is contemplated is the process whereby land is "identified", and which may then be "allocated" whilst remaining "protected" and subject to ECON 1 and other policies. Having adopted this construction, the Inspector went on to apply it and had regard to the nature of the appeal site, its previous planning history and other matters which are set out in paragraphs 10 onwards of his decision letter at page 13 Trial Bundle 1. At paragraph 13 he concludes that the identification of the site as one which is to be protected for employment purposes does not mean that the land is therefore suitable for development in the terms of the proposal before him: he says that the highest it could be put is that the "proposal would not conflict with ECON 1 in that it does not seek an alternative use other than for employment purposes." His conclusion is summarised under "Overall Conclusions" paragraph 31 Trial Bundle 1 page 17:

"Although the present development of the appeal site arose from particular historical reasons unrelated to employment use, it is reasonable to safeguard this use in the light of its contribution to the local economy. However, this is a remote and isolated rural location, served by poor quality roads and I regard the size of the proposed development unacceptable for the reasons given above. Therefore, having regard to all of the matters raised, I conclude that the appeal should fail."

19. It will be recalled that the Inspector had the opposing contentions clearly before him in the closing written and other submissions of the parties. In paragraph 11 of the decision letter, trial bundle 1 page 13 he records the evidence in relation to 350 acres of ECON 1 land which remains undeveloped: in my judgment, he was entitled to accept and act upon evidence which was put before him: see below. There is no error of law disclosed in his approach to the issues set out under ground 1 which requires correction by way of review in my judgment. His approach is consistent with the canons of construction adopted by the courts, and the construction which he adopted is clearly right, and I reject any contention that he took into account irrelevant matters or failed to give appropriate weight to relevant matters. Accordingly in my judgment Ground 1 is not made out.

GROUND TWO:

20. The Inspector concluded at trial bundle 1 page 14, paragraph 16:

"On the evidence provided I am not able to conclude that there is a shortfall of suitable employment land in the District as a whole or in the Vale of Evesham in particular. In quantitative terms, whilst provision in the early years of LP fell behind the average rate required to meet the SP requirement, there has been a recent increase in provision and the likelihood of and enhanced rate of provision when Vale Park and Throckmorton continued to be developed."

21. The "evidence before him" consisted, as the Local Planning Authority's final submissions at the appeal show, at Trial Bundle 2, page 444 paragraph 14, some 460 hectares of which 350 hectares remained undeveloped. Mr Dove complains that this evidence was unsupported by documentation and seeks to challenge it by further evidence from Mr Golby (as to which see below). I see no reason why the Inspector, in the context of the intense scrutiny to which evidence was subjected at the appeal, and in the light of all the material and submissions before him, was not entitled to accept that evidence. The Inspector was, in the context of a Decision Letter, not bound to cross every 't' and dot every 'i' as the South Somerset case shows.
22. As to ground 2, paragraph 10, the Inspector at paragraph 17 of the decision letter, page 14 states:

"In qualitative terms, there is a need to provide a range of sites, albeit that the RSS does not require the full range in every district. Of note here is that the appeal site is close to the boundary with 2 neighbouring districts where suitable local sites may also be located. Moreover, there has been no sequential analysis of whether any identified needs for employment land could be provided in more sustainable locations, closer to larger settlements and the trunk road network. Therefore, even though this site might, with improvement, be termed 'good quality' as defined by RSS Policy PA6, the disadvantages of its poor accessibility are of greater significance than a potential short-fall of 'good quality' land, which could be addressed in more sustainable locations."

I have already referred to paragraph 16 of the decision letter which sets out the Inspector's conclusion as to the short-fall of suitable employment land in the District as a whole or in the Vale of Evesham in particular. There was therefore evidence which he clearly accepted, and which he was entitled to accept. In those circumstances, it seems to me that there is no substance to the complaint in ground 2 paragraph 10. As to ground 2 paragraph 11, as paragraph 17 of the decision letter clearly shows, he had in mind Policy PA6 of the Regional Spatial Strategy: he addressed the issue raised by it, and determined it by exercise of his planning judgment. Accordingly in my judgment ground 2 is not made out.

23. Mr Dove seeks to rely upon the statement of Mr Steven George Golby at Trial Bundle 1 pages 231 to 244 which seeks to revisit the issue of the 350 hectares of undeveloped land. At page 244, paragraph 16.4, Mr Golby says:

"Therefore, it is not true to say that all the sites GMC are referred to in her global approach included 350 hectares of undeveloped land. This highlights the convoluted approach to policy ECON 1 and whether sites are allocated as the GMC 7 schedule applies or protected depending upon which the position the Interested Party is trying to defend.

17. The conclusions drawn from the document are misleading in that they are based on a schedule of facts, which, at least, have been carelessly interpreted."

24. As the evidence of Gillian Margaret Collin at Trial Bundle 1 page 245 etc shows, not only was the issue of the 350 hectares canvassed in evidence, but it was also dealt with in submissions: see paragraph 8 page 247 of Trial Bundle 1. I see no justification at this stage for allowing the Claimant to reopen this issue as Mr Golby seeks to do: I accept the submissions of the Secretary of State as set out in paragraph 11 to 13 of the skeleton argument filed on the Secretary of State's behalf in relation to the issue of Mr Golby's statement.
25. I bear in mind the challenges which are mounted by paragraphs 31 to 32 in the Claimant's skeleton in relation to alleged misapplication of policy ECON 2 and other policies. I have already dealt with the relevant passages in the Decision Letter. In my judgment there is no misapplication on the construction of ECON 2 or other policies: this was an Inspector who exercised his planning judgment in a lawful and relevant matter, and I reject any challenge based upon paragraphs 31 and 32 of the Skeleton.

GROUND 3:

26. The Inspector clearly had a discretion to regulate the hearing and to restrict cross-examination. That discretion had to be exercised fairly in the light of all the circumstances and not so as to debar a party from pursuing any issue.
27. I have already referred to the evidence in relation to what happened at the appeal in earlier parts of this judgment.
28. From that note of evidence it appears to me that the Inspector exercised his power within the rules which applied to the appeal, and did not exceed it. He exercised it in my judgment rationally in that he gave a reason for his decision. All parties were represented by competent lawyers at the hearing before him. Mr Dove was not taken by surprise on behalf of the Claimant in the sense that a novel issue not canvassed previously was raised in the Decision Letter: The landscape issue was identified and addressed by witnesses from both sides. Mr Dove was able to put his case in closing submissions and comment upon the local planning authority's case in relation to landscape issues: he put the matter, in this way at trial bundle 2 page 476 paragraph 39:

"Having dispensed with that issue, there are three points which are raised in terms of landscape visual impact. The first is a criticism of the viewpoints which have been assessed in the Environmental Statements; the second is the impact on the AONB; the third relates to the effect on landscape character, in particular as a result of the mitigations of the proposals. What is important to appreciate is that, as was confirmed by Mrs Marshall, no issues have ever been taken Appellants in relation to any objection in principle of landscape of visual impact grounds prior to the receipt of the committee report. That, coupled with Mrs Marshall's consultation response, is a telling indictment of the validity or the concerns which have now been raised.

40. The issues in relation to viewpoints can be taken briefly, since they are matters which will be for your appraisal following a site inspection. For the purposes of these submissions, it is sufficient for me to observe that the alleged omissions identified by Mrs Marshall are either, on examination, very distant from the site and with a negligible or slight effect (as is obvious from the need to use zoom lens or vegetation evidently obscuring the views), or they are views which in fact have already been taken into account in the Environmental Statement but in a different way. The example of this is the views from the settlement of Willesley, where Mrs Marshall accepts that there are few if any views from Willesley from complaints about views from public rights of way to the south of that settlement which have been taken up in the environmental statement as views from public rights of way. Thus there is no substance in the suggestion that the environmental assessment is anything other than comprehensive and thorough."

The site inspection followed the usual procedure.

29. In my judgment there is nothing to suggest that the Claimant was not given an opportunity to ventilate issues freely, there is nothing to suggest that the Claimant or the Claimant's advisors were taken by surprise. As Lord Diplock noted in Bushell, the Inspector's own views as to whether the likelihood of cross-examination will enable him to make a report which will be more useful to the Secretary of State to enable a decision to be reached is "the most important" of the relevant circumstances to be considered in deciding whether "fairness requires that cross-examination should be allowed". The Inspector clearly considered this issue, came to the conclusion which in my judgment was in all the circumstances fair, and resulted in no injustice to the Claimant or a breach of natural justice or human rights or any rights under the European Convention. Mr Dove also dealt with all the issues in his Closing Submissions as the extracts quoted above show.
30. I have carefully considered the additional authorities and submissions to which Mr Dove advanced. In particular I have considered paragraphs 33 to 34 of the Claimant's skeleton argument. I do not regard them as having substance: they are forensic doubts to borrow the words of Sir Thomas Bingham M.R., as he then was, in Clarke Houses v. Secretary of State for the Environment [1993] 66 P&CR at 263. I reject the submission that the procedure was manifestly unfair and unlawful in those circumstances.

CONCLUSION:

31. The Inspector in his Decision Letter, paragraph 4 Trial Bundle 1 page 11 identified three main issues in the case. In my judgment he was correct so to do. He dealt with those issues in a way which requires no oversight or correction from this court.
32. In reaching my conclusion I have taken into account all the written material and submissions placed before me. I have also taken account of counsel's helpful submissions for which I am grateful.