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
		16 July 2010

Mr Justice Blake:

Introduction

1. This is an application made under Section 21 of the Land Compensation Act 1961 (the Act) to set aside a decision of the Secretary of State dated 9 July 2009 upholding a recommendation of an inspector dated 17 March 2009 that the claimant's appeal against the terms of a certificate of appropriate alternative development should be dismissed.
2. The underlying certificate was issued by Newham London Borough Council, the first interested party, on 17 March 2008. It related to a piece of land owned by the claimant company adjacent to Carpenters Road London E15. The land was used as storage for builders' materials. It fell within a zone of opportunity of proposed large scale redevelopment of the Stratford area. In 2005 it was the subject of a compulsory purchase order as it formed part of the development site for the London 2012 Olympic Games. The second interested party, the London Development Agency, had the responsibility of acquiring the land to develop the site to enable the games to take place. The issue for the council and on appeal the inspector and the Secretary of State was: on the assumption that the development giving rise to the compulsory purchase order had been cancelled, whether planning permission would have been granted and if so for what classes of development?
3. The council granted a certificate of appropriate alternative development specifying B1 (Business) and B2 (General Industrial) within the meaning of the Schedule to the Town and Country Planning (Use Classes Order) 1987 SI 1987 No. 764. The claimant had sought a certificate that included C3 (Residential) use. This was rejected by the council and subsequently by the inspector.
4. The issue for this court is whether the decision dismissing the claimant's appeal is vitiated by material error within the scope of Section 21.

The Legislation

5. The material parts of Section 21 (1) of the Act are as follows:

"If any person aggrieved by a decision of the Minister… desires to question the validity of that decision on the ground that it is not within the powers of this Act or that any of the requirements of this Act or of a development order or of the Tribunals and Inquiries Act 1992 …or rules made thereunder, have not been complied with in relation to it, that person or authority may within six weeks from the date of decision, make an application to the High Court, and the High Court

……. b) if satisfied that the decision is not within the powers of this Act or that the interests of the applicant has been substantially prejudiced by failure to comply with the said requirements, may quash the decision. "

6. The nature and purpose of a certificate of appropriate alternative development is identified in Section 17 of the Act. Section 17(4) provides as follows:

"Where an application is made to the local planning authority for a certificate under this section in respect of an interest in land, the local planning authority shall…issue to the applicant a certificate stating either of the following to be the opinion of the local planning authority regarding the grant of planning permission in respect of the land in question, if it were not proposed to be acquired by an authority possessing compulsory purchase powers, that is to say-

a) that planning permission would have been granted for development of one or more classes specified in the certificate (whether specified in the application or not) and for any development which the land is to be acquired, but would not have been granted for any other development; or

b) that planning permission would have been granted for any development for which the land is to be acquired, but would not have been granted for any other development.

......."

7. Section 17(7) provides:-

"In determining, for the purposes of the issue of a certificate under this section, whether planning permission for any particular class of development would have been granted in respect of any land, the local planning authority shall not treat development of that class as development for which planning permission would have been refused by reason only that it would have involved development of the land in question, (or of that land together with other land), otherwise than in accordance with the provisions of the development plan relating thereto. "

8. Section 17(3) provides:-

"An application for a certificate under this section-

a) shall state whether or not there are, in the applicant's opinion, any classes of development which, either immediately or at a future time, would be appropriate for the land in question if it was not proposed to be acquired by any authority possessing compulsory purchase powers, and, if so, shall specify the classes of development and the times which they would be so appropriate."

9. The purpose of such certificates relates to the assessment of compensation for the land that is subject to the compulsory purchase order. Under Section 15(5) of the Act it is provided:-

"where a certificate is issued under the provisions of Part III of this Act it shall be assumed that any planning permission which, according to the certificate, would have been granted in respect of the relevant land or part thereof if it were not proposed to be acquired by any authority possessing compulsory purchase powers would be so granted, but, where any conditions are, in accordance with those provisions specified within the certificate, only subject to those conditions, and if any future time is so specified, only at that time. "

10. The task of the local authority is to treat an application for a certificate as if it were a planning application, but a planning application based on the hypothesis that the development that caused the compulsory purchase order was not going to take place. Although the application can contemplate future development the applicant must identify the times at which such development could be appropriate; where the development proposed by the applicant is not immediately appropriate, therefore, the circumstances in which it would be would have to be identifiable and foreseeable.
11. The approach to be taken to a planning application or an application for certificate of appropriate alternative development, was not in dispute at this hearing and may be summarised as follows:-

i) It is necessary to take into account the development plan and any other material considerations (Town and Country Planning Act 1990 s70).

ii) Where regard is had to the development plan the determination must be made in accordance with the plan unless material considerations indicate otherwise (Planning and Compulsory Purchase Act 2004 s38, and PPS1 2004 paragraphs 10-16).

iii) There is a presumption in favour of development that is in accordance with a development plan and any refusal should be based on positive reasons identified by the planning authority. This was stated in the case of Thornhill Properties v Secretary of State for the Environment (1980) 258 EG 172 [1981] JPL 116 applying the terms of the then applicable planning guidance circular. Although the terms of the relevant guidance have changed, the principles are broadly the same.

iv) Subject to the statutory scheme and the terms of any current planning guidance, it is generally unhelpful to introduce the concept of onus of proof as a legal test in such applications. Depending upon the issues there may be a persuasive or forensic burden on one party or another to the process (see observations made in JA Pye (Oxford) Estates Limited v West Oxfordshire District Council and the Secretary of State for the Environment 19 April 1982).

v) The inspector is under a duty to consider material planning policy and supplementary guidance, apply them to the particular site in question and to explain the conclusions in his report. The content of the reasons has been set out in South Bucks District Council v Porter (2) [2004] UKHL 331 WLR 1953 per Lord Brown at [36]:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how the issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to substantial doubt as to whether the decision maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must always be read in a straight forward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he is genuinely substantially prejudiced by the failure to provide an adequately reasoned decision."

vi) Further guidance as to the court's approach to an inspector's reasons is provided in South Somerset District Council v Secretary of State for the Environment [1993] 1 PLR at 83 F to G per Hoffman LJ.:

"The inspector is not writing an examination paper on current and draft development plans. The letter must be read in good faith with references to policies taken in the context of the general thrust of the inspector's reasoning. A reference to a 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."

The appeal site

12. The relevant date for the purposes of the appeal was 16 November 2005 when the compulsory purchase order was published. The inspector's inquiry was conducted in January 2009 by which time the appeal site was within the secure boundary of construction of the facilities for the Olympic Games, had been cleared of buildings and was used for storage plant equipment machinery and materials as part of building operations. The inspector noted the following features of the land and the site:

"3. …The land is on the eastern edge of the Olympic site, which is marked by railway lines separated from the appeal site by unpainted metal palisade fence. This railway line was, at the relevant date and remains, at the time of writing this report, essentially a freight-only route carrying heavy flows of traffic, mainly deep sea containers shipped into Tilbury in the Haven Ports of Harwich and Felixstowe running from Stratford regional mainline stations through inner East and North London and heading for inland destinations.

4. The appeal site was originally part of a wider area of industrial/commercial development known as Stratford Railway Lands lying to the north of the mainline railway line from Liverpool Street terminus through Stratford and extending into East Anglia. The land to the east of the railway line adjoining the appeal site, and entirely surrounded by other railway lines, is known as Stratford City a very large comprehensive mixed-use development currently under construction and encompassing the as yet unopened Stratford International Station sited on the High Speed Channel Tunnel Rail Link. This development was granted planning permission on 17 February 2005 and therefore predates the relevant date of 16 November of that year. In addition, by that time detailed planning permissions were in place for the construction of access roads to the development from Carpenters Road including the latter's realignment and that the London Borough of Newham had indicated its willingness to use compulsory purchase order powers to assemble and to deliver the scheme.

……

157. The surroundings on the relevant date were…uncompromisingly commercial in nature and/or inimical to residential development on the appeal site. To the east was Thatched House Yard, dominated by the maintenance and repair of motor vehicles. Caerns Yard to the west was similarly characterised by various units occupied by motor vehicle enterprises. On the southern side of Carpenters Road was a vehicle breaking business and a yard used for the storage of aggregates of this storage industry. Other plots on the south side of the Carpenters Road had already gone out of use but their run down appearance added to the generally down at heel nature of the locality. The railway line on the northern boundary of the land carried frequent freight trains. They often stopped at signals on the line waiting for slots between the frequent passenger trains on the main line out of Liverpool Street station. The noise of accelerating mainly diesel freight locomotives hauling laden and unladen trucks around a tight bend in the tracks and over point work generated significant noise levels on the appeal site.

158. By the relevant date, road proposals affecting the surroundings of the appeal site had been agreed in principle. These involved realignment of Carpenters Road in the direction of a bridge across the railway line on the site of Thatched House Yard. On the other hand the appeal site would have remained essentially intact served by a support service cul-de- sac of the realigned Carpenters Road. Although it may have acted as a catalyst to redevelopment of the locality, the new road works primary purpose was to create a new link into the Stratford City major urban regeneration scheme from Stratford High Street to the south. Because of its proximity to the site (12 metres in places) the new elevated road over the railway line could be seen as a further detraction from residential developments on the site while opening up a new link to Stratford City, the rather tortuous nature of the new road way with foot ways on both sides of the carriage way would mean that the centre of Stratford City would remain about the same distance away on foot as the present Stratford town centre, at about one kilometre, unless new pedestrian links were installed. The new road would cross through the commercial sites from the south side of Carpenters Road. Whether that, in itself would have been sufficient to bring about the removal of the car breaking and aggregates storage is uncertain.

159. Where there is little disagreement between the parties (and it is a consensus with which I concur) is that the state of the land and surroundings, by themselves, were not suited to any form of residential development on the relevant date, as determined alone by the pattern of development existing at that time. However, the policy framework that had developed over the previous five years indicated that the site and its surroundings were not going to stay the same with or without the Olympic Games being held in London in 2012. The question therefore to be determined is whether those changes from the previous pattern of development were going to be so drastic, prior to the award of the Games in London, as to permit residential developments to be reasonably foreseeable on the appeal site, as postulated by the appellants, or whether those changes would result in a continuation essentially of employment uses of this land, or albeit following redevelopment, as argued by the local planning authority and the acquiring authority. It is therefore essential to look at the policy framework for the period 2000-2005 in some detail because that should, in this particular case determine the outcome of this appeal."

13. The council's case in opposing a certificate that included residential use of the site was summarised earlier in the report;

"81. At the relevant date, the physical conditions affecting the appeal site did not afford an appropriate environment within which to permit residential development. The road link into Stratford City had not been built and there were, and still remain, uncertainties as to when, or whether much of the approved development may take place there was no policy support for residential development on the appeal site and the council accordingly opposed such development in principle. The development was also objectionable on grounds of being a piecemeal proposal, which would undermine the principle of comprehensive development of the Carpenters Road area."

The relevant planning policies

14. The claimant points out that the two statutory development plans applicable to the area within which the appeal site was located were the Council's Unitary Development Plan (UDP) adopted in June 2004 and the Mayor of London's London Plan as the spatial development strategy for London.
15. The UDP made it plain that in general terms the council ought to use the opportunity of a considerable amount of land becoming available in the Stratford Rail Lands to create major opportunity zones (MOZ) with a view to urban regeneration and that mixed use developments were encouraged in such zones and town centres to create greater diversity and vitality and to minimise the need to travel (Policy S6, para 52 UDP). With respect to the Stratford Rail Lands MOZ1 the following objectives were identified at paragraph 2.128:-

"a) long term development should concentrate on uses which provide new employment opportunities and seek to revitalise the East London economy;

b) development should contribute to the regeneration of the wider East London area and confirm the role of Stratford and the rail lands development as the western focus of the Thames Gateway;

c) development should be sustainable and of high environmental quality, incorporating improved landscape links into and through rail lands;

d) the development should embrace a range of uses taking advantage of international and sub regional local demands which the rail lands are uniquely placed to meet;

e) to ensure that the key means of access to development would be by public transport;

f) to support mixed use development where it reduced travel and has no adverse impact upon amenity;

g) to enhance Stratford's role as a shopping and employment cultural centre and to secure development links which physically connect new uses on the rail lands to facilities in the existing town centre unifying new and old."

16. Consequently the specific range of land uses contemplated in the UDP included employment generating uses classes B1 and B2, leisure, tourism, and retailing. The only express reference to residential use in the UDP was residential development that served to decrease the isolation of the Clay Lane estate or, by being integrated within the development link, contribute to the enhanced vitality of that link (see para 2.136 and policy UR14). The Carpenters Road area was within MOZ1 and the Clays Lane estate to which reference was made was some distance away in another part of Stratford. The appeal site was in the part of Carpenters Road that was nearest to the Stratford City development. Despite the absence of express reference to housing in Carpenters Road in the UDP it was nevertheless accepted by the local authority witness at the inquiry that there was nothing in that plan which ruled out residential development in the Carpenters Road area generally (see para 19 of the Inspectors Report).
17. The London Plan was not a Stratford specific plan but again supported the mixed use of redevelopment in opportunity zone areas. The claimant placed particular reliance at the inquiry and at the hearing on Policy 3B4 of that plan that provided:

"Wherever increases in office floor space are proposed they should provide for a mix of uses including housing unless such a mix would demonstrably conflict with other policies in this plan. Sub regional development frameworks will give further guidance on the relevant proportions of housing and other uses to be sought."

It is reasonably clear that that policy was not an unconditional and inflexible requirement that every building creating office space must also include residential space. Mixed use development increasing the amount of residential space where new office space was created could be achieved within an overall plan for an area by allocating parts of that land to housing and parts to offices. Other aspects of the London Plan made plain that the suitability of sites for mixed use development and environmental considerations were relevant. Elsewhere the London Plan indicates that although implementation of the policy should not await the production of sub-regional development frameworks, exceptions to the Policy will only be permitted where requirements of such a mix would demonstrably undermine strategic policy for other developments (para 3.215).

18. Other policy documents material to the question of development of the appeal site include Newham's Arc of Opportunity Planning Framework Document dated November 2002. With particular respect to the Carpenters Road area that document stated:

"This site forms a key gateway into the Rail Lands and requires development of the highest quality to reflect this. The Council is seeking a mixed-use employment led scheme in accordance with the UDP designation which include B1, B2 supporting residential uses set within high quality landscaping. The close proximity to the Waterworks River provides an ideal opportunity to create residential units fronting onto it. Any residential development should include a mix of unit sizes and provide an element of affordable housing in accordance with Council's UDP policies.

The Council will resist low quality development not in keeping with this mixed use designation due to the proximity to residential properties and the objective to create a high quality environment B8 waste management and transfer facilities are considered inappropriate".

19. The final document was Stratford: A 2020 Vision, a draft Framework Plan of August 2003 drafted by the Rail Lands Working Group, a consortium of local authorities, Transport for London and the Greater London Authority. With respect to the Rail Lands generally it was stated that they offer considerable scope for new residential development and the potential to create an entirely new community:

"Residential development should form both an element of a mixed use scheme and single use developments. The aim is to create quality environments with a clear and defined sense of place. Development would be predominantly on a human scale and would be secure and attractive for residents providing a liveable community."

The Carpenters Road area was referred to in the context of proposals for possible specialist housing which would reinforce the vitality for commercial and business areas at night, and the potential for creating live work space as part of new employment areas should also be examined. This part of the document also stated:

"where new residential development occurs it should take advantage of proximity to the existing Lee Valley Regional Park and adjacent rivers and waterways and link or draw these features into the schemes. A larger residential population will also increase the demand for an extended range of social facilities to the benefit of the wider area".

The claimant's case

20. The claimant's case at the inquiry was fully and accurately set out by the inspector at paragraphs 11 – 47 of the inspector's report. Its general thrust was that the Stratford City scheme for which outline planning permission had been granted in February 2005, would create development opportunities for the Carpenters Road area although this was outside the area of that scheme. It would undoubtedly have an impact on road access and existing land use. There was nothing inherently unsatisfactorily about the appeal site's location adjacent to the railway line. Such proximity is a common feature in regeneration scheme areas of East London. In any event conditions would be imposed on the grant of outline consent to require acoustic treatment. The design process would ensure that any building constructed would be of suitably high quality to be appropriate to this important gateway location. The appeal site was manifestly suitable for a mixed use scheme with uses that would play its part in regeneration of the area.
21. In support of this application Mr Hobson QC contended that the inspector:-

i) had failed to answer the question that he had proposed at paragraph 159 of the report cited above;

ii) had failed to recognise the relevant statutory planning guidance required mixed use residential development in the absence of material reasons to the contrary;

iii) had imposed an inappropriate burden of proof on the claimant to justify the development;

iv) was so obscure in material parts of his conclusions as to fail to meet the standards required by the law to the prejudice of the claimant who could not understand why a sensible proposal in accordance with planning guidance had not been accepted.

22. The claimant points to various words used in paras 162 – 164 of the inspector's report to indicate that he was not applying the planning guidance and giving the claimant the benefit of the presumption of development if the proposals accorded with it as he was required to do.

Conclusions

23. Having analysed the inspector's reasons with the benefit of the written and oral submissions of counsel, I conclude that while some individual words and phrases might be susceptible to criticism if taken on their own, when read as a whole and purposefully, as I am required to do, there is no indication that the inspector either misunderstood what the contents of the relevant planning guidance were or what his duty was in terms of applying it to the site in question. Overall it is clear that he is considering how helpful the planning policy documents were to the particular decision in the case that he was concerned with, namely whether future development would include C3 residential use on the site.
24. He made it plain that the policy to which he had attached weight was the 2020 Vision Document that was both recent and the product of cooperation by strategic partners. In my judgment, in the absence of a development plan that precisely identifies the nature of permitted or prohibited development on the appeal site land, the question of what weight should be accorded to either the statutory development plan or supplementary materials is a matter for the inspector subject to supervision of this court on ordinary judicial review principles.
25. Having looked at all the plans his conclusions were as follows:-

"170. Drawing the somewhat dispersed policy threads in the 2020 Vision supplementary planning guidance together, it seems to me a logical overall pattern, to determine the outcome of this appeal, can be discerned. In the no-scheme world of Carpenters land, mixed comprehensive development, incorporating a significant amount of housing but primarily employment generating led, could take place in the locality even before Stratford City had taken off. The housing element would tend to gravitate towards the attractive waterside location of the Waterworks River where its potentially quick implementation would bring about significant improvements to the waterway's landscape qualities and the provision of important new pedestrian and cycle links. "

He then dealt with an argument that the part of the Carpenters Road adjacent to the waterways was a little further from Stratford City Centre than the appeal site but he did not find that persuasive. In the next paragraph he continues his reasons:-

"171. The need for comprehensive development would seriously count against the development of the appeal site in isolation. Were it to come forward for redevelopment in a more piecemeal manner, the land's inability to benefit from a waterside location, coupled with proximity of the freight carrying railway line even with adjoining "bad neighbour" commercial uses removed, would militate against its development for part of the significant residential element on the Carpenters land as a whole".

26. In context, the reference to the development of the appeal site in the first sentence of paragraph 171 must be a reference to proposed residential development of the appeal site rather than any development at all. It would have been illogical to say that there would be no development since the council recognised that the B1 and B2 development could take place on the site which was fundamentally different from the B8 use to which it had been put at the relevant date. However whilst the desirability of comprehensive development as the primary feature of the planning of development proposals for the area as a whole was not conclusive against any development of the appeal site alone, it would be relevant to consider whether residential use should form part of any development of that site, given the significant adverse environmental factors.
27. Comprehensive development of the Carpenters Road area could ensure that the relevant planning policies for mixed use and additional residential use wherever new office space was being created, could be met by allocating new housing facilities to the most appropriate areas namely alongside the water edge and not by the railway line. Such a location is also clearly consistent with the high quality environmental aspirations of all four relevant policies. Not only would the appeal site have the disadvantage of the noisy railway, even if comprehensive development was to lead to the elimination of the other bad neighbour commercial uses that existed in November 2005, the Stratford City development that was envisaged would bring with it the proposed road bridge over the railway some twelve metres from the appeal site. As far as could be foreseen this did not amount to an additional amenity for pedestrians to access Stratford City development but was a further environmental detractor from residential use of the appeal site..
28. In my judgment paragraphs 170 to 177 contain the essential answer to the claimant's case at the inquiry. They also answer the question posed in paragraph 159 as to whether future changes within the contemplation of the planning application process would remove the environmental features that precluded residential development in November 2005 so as to make a C3 use such a reasonable likelihood as to conclude that planning permission would have been granted for it. The inspector concluded that even on the most favourable scenario that might reasonably be contemplated (ie the loss of all other bad neighbours) the railway and the roadway sufficiently militated against residential development on the appeal site. There was nothing in the evidence of the council's officers when cross-examined at the inquiry, or any of the four policies properly construed to suggest that planning permission should have been granted for residential use on the appeal site with those features.
29. The inspector repeated the thrust of this conclusion at paragraphs 178 and 180 when he states that the UDP of 2001 gave little encouragement to residential development on the appeal site as opposed to other more suitable sites in the Carpenters Road area. Whatever the language used, the inspector understood and correctly applied the statutory plans to determine the particular planning issue in question.
30. Somewhat more obscure is the inspector's answer to the subordinate question, namely what the position would have been if there had been no comprehensive development of Carpenters Road area or the aspirations of the local planning authority contained in the UDP. A sufficient response to that hypothesis could have indicated that there would then be no reasonable degree of likelihood that the other "bad neighbour" commercial uses presently detracting from residential use would have been removed. The position would not be sufficiently materially different in terms of environmental factors from the admittedly unsuitable regime applying in November 2005. This would make it unlikely that a planning development of the appeal site in the least environmentally attractive area of the Carpenters Road land generally would have kick started quality re-development in the area as a whole.
31. What the inspector actually said was as follows:-

"172. It may be that an all office development on the appeal site, which would not be in breach of the CAAD issued by the council, would require a proportion of residential accommodation in accordance with London Plan Policy 3B.4. It may also be the case that contrary to the guidance expressed in the 2020 Vision Supplementary Planning Guidance, early redevelopment of the Carpenters land did not take place and the landmark building incorporating a preponderance of residential accommodation could be erected in isolation to act as a suitable gateway to Stratford City adjoining its approach road and kick starting redevelopment in the remainder of Carpenter lands. However the advice in paragraph 4 of Appendix P to Circular 06/2004 is that general policies of the development plan should be followed so that small pockets of residential provision associated with office development can be disregarded for the purposes of issuing a certificate. Moreover, paragraph 16 requires a decision to be based on the current and reasonably foreseeable policies prior to the cancellation of the scheme, not a development that deliberately ignored such policies to simply stimulate redevelopment was otherwise showing signs of severe delay in getting of the ground."

32. Despite the assistance of the defendant and the intervener, I confess to having real difficulties in seeing how anything contained in Appendix P to Circular 06/2004 could answer the hypothesis posed by the inspector. If a landmark office building were to be built upon the appeal site and if London Plan Policy 3B.4 required that in any such case residential accommodation was necessary I cannot see why the amount of residential accommodation could be said to be so insignificant as either not to require a certificate of C3 residential use, or otherwise could be ignored as contrary to the general tenor of the development plans. This is elliptical reasoning, but this does not of itself mean that there has been a material error of law within the scope of Section 21 or that the claimant has been prejudiced by it.
33. I note that paragraph 172 is prefaced by the word may. The question for the inspector is would such planning permission be granted. In that context I accept the defendant's submission that what was going on in this paragraph is some engagement with the alternative or further submissions advanced by the claimant at the inquiry. But once the central hypothesis of overall comprehensive development of both the Stratford City area and the adjacent Carpenters Road lands is put aside, then the claimant's case necessarily becomes very much weaker and more speculative as to the degree of reasonable likelihood there would be of either adverse factors disappearing or positive factors emerging.
34. In any event the contention that was being addressed in paragraph 172 depended upon 3B.4 having some mandatory requirement to add residential space to any new stand alone office building, but the policy properly construed imposes no such requirement independent of environmental considerations or planning proposals for the area. Thus even if the appeal site were to be examined as the first piece of land on which planning permission would be granted its unsuitability for residential accommodation remained. The planners would also be able to identify that development plans for the rest of the land (even if not yet implemented) would provide ample accommodation for residential needs in more suitable areas particularly (though not necessarily exclusively) the waterside area.
35. This is perhaps the thread of the reasoning in 172, but even if the inspector's reasons failed the standards of clarity required by the South Bucks v Porter decision, I conclude no detriment has been suffered by the claimant for the reasons set out in the preceding paragraphs of this judgment.
36. It might have been helpful if the inspector had given his specific response to the claimant's proposition that sound proofing could sufficiently address noise issues coming from the railway. I accept that the existence of railway lines in close proximity to housing is by no means unusual in North and East London and is not always fatal to residential development. However, the thrust of the inspector's decision is that there was no imperative to build housing on the appeal site when there was plenty of available land in which high quality housing could be built in an appropriate environment in addition to business or office use of land. The council would therefore be unlikely to give permission for a residential building in an unsuitable or less suitable location that would require significant measures of amelioration when this was not necessary to increase residential units.
37. Finally, I do not conclude that the inspector made an error of law when he said at 173 that "I do not consider that a case has been made out in addition of residential use". The burden of persuasion in the particular factual context of this dispute fell on the claimant who had the forensic task of meeting the council's particularised objections.
38. If the inspector's report can not be challenged as irrational, illogical or insufficiently reasoned, there is no basis for challenge to the Secretary of State's confirmation of it. In the event I conclude that this application should not succeed and it is dismissed.