England and Wales High Court (Administrative Court) Decisions

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

		Birmingham Civil Justice Centre 33 Bull Street Birmingham B4 6DS
		19/12/2012

Mr Justice Kenneth Parker :

Introduction

1. This is an application made by Larkfleet Limited, the Claimant, under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") challenging a decision made by the Secretary of State for Communities and Local Government ("the Secretary of State") given by decision letter dated 1 March 2012 ("the challenged decision"). The Second Defendant is South Kesteven District Council ("the Council").
2. The Secretary of State dismissed the Claimant's appeal against the Council's refusal to grant outline planning permission for a "sustainable urban extension" to Grantham, comprising at least 1,000 dwelling houses and other development on land to the north of Grantham ("the appeal proposal").
3. The Secretary of State made his decision in the light of an inspector's report made by Terry Phillimore MA MCD MRTPI dated 12 January 2012 recommending that planning permission be refused ("the Report").

The Events Leading to the Challenged Decision

4. The background to the Claimant's planning appeal is set out in full in the Report at paragraphs 1-23.
5. In summary, by outline planning application dated 22 January 2010 the Claimant sought planning permission for the creation of a "sustainable urban extension" to Grantham comprising at least 1,000 dwellings and other associated works on land to the north of Grantham at Manthorpe in Lincolnshire.
6. The site was situated at about 2km to the north of the main part of the town centre of Grantham, abutting the edge of the built up areas known as the Manthorpe Estate. The site was approximately 55.9ha in size. Manthorpe Village to the south east was an estate hamlet which was a designated Conservation Area. To the east of the A607 lies the Grade I listed Belton House set out within Belton Park, a Grade I Registered Park and Garden containing a number of other listed structures including the Grade II Belmont Tower. The house and the park are within the ownership of the National Trust and open to public visit. The park is approximately 250m from the site at its closest point.
7. The planning application was refused on six grounds by the Council by decision notice dated 12 January 2011.
8. The Inspector held an inquiry in November 2011 into the Claimant's appeal against the Council's decision. He conducted a site visit on 4 November 2011. After hearing the parties' cases, the Inspector submitted his report dated 12 January 2012 to the Secretary of State. The Inspector recommended refusal of the appeal.
9. The Report is comprehensive and gives careful consideration to the matters raised by the Claimant in the appeal. In this application the grounds of challenge are relatively limited and narrow.
10. The Inspector set out at paragraphs 24-49 relevant planning policy for the purposes of the appeal. No criticism is made in the application of the identification of the relevant policy framework. In particular, the Inspector dealt with the Council's "core strategy" ("CS"), including policy SP1 as follows:

"32. Policy SP1 provides spatial strategy. The majority of all new development should be focused upon Grantham. New development proposals shall be considered on appropriate sustainable and deliverable brownfield sites and appropriate Greenfield sites (including urban extensions) sufficient to ensure the achievement of growth targets. Details of specific sites (including urban extension sites) will be included in a Grantham Area Action Plan (GAAP). In all cases permission will only be granted on a less sustainable site where it has been proven that there are no other more sustainable options available or there are other overriding material considerations. Paragraph 5.1.5 gives criteria for assessing all potential residential site which are located in accordance with the spatial strategy. These include tests on accessibility (with a reference to policy SP3) and impact on historic assets. Paragraph 5.1.6 indicates that the GAAP will allocate additional appropriate and sustainably located sites both within and on the edge of the built up area of the town to ensure that a range of sites is available throughout the plan period." (my emphasis)

11. The Inspector, at paragraphs 37-39, dealt with other specific policies in relation to housing, including Policy H1 and H2 which set out the requirements for the North West Quadrant and Southern Quadrant sustainable urban extensions ("the relevant SUEs"), including the road links.
12. The Inspector referred to other local policy including in particular the Submission version of the Grantham Area Action Plan ("the GAAP") which had been issued in October 2011 (ie the month before the Inquiry). The Submission version of the GAAP identified two sites for the North West Quadrant and Southern Quadrant SUEs respectively. These sites were identified as sustainable urban extensions in the adopted Core Strategy. The Inspector noted at paragraph 47 that the period for representations on the GAAP was due to expire on 18 November 2011.
13. The Inspector at paragraph 49 identified relevant national planning policy, including PPS3 on housing.
14. At paragraphs 50-51 the Inspector referred to relevant planning history, including the consideration of the potential for growth of Grantham at Manthorpe which had been considered at the Preferred Options stage for the CS, but had been rejected by the Inspector who had examined the CS.
15. The Inspector set out agreed matters at paragraphs 52-57, including the absence of an identifiable five year supply of housing for the area and the fact that the appeal proposal would add approximately 0.3 years supply to that 5 year supply.
16. At paragraphs 59-236 the Inspector set out the respective cases of the Council and the Claimant, as well as the representations made by other interested parties.
17. The Inspector then set out at paragraphs 237-309 his detailed conclusions on the appeal. He identified seven main considerations at paragraph 238, the first of which was "the relationship of the proposal to the development plan". He then turned first to consider the proposal against the development plan, dealing specifically with the potential effect of the appeal proposal on the development of the SUEs and the transport element of the spatial strategy. The Inspector's analysis of this issue lies at the centre of this application, and should be set out in full:

"240. A significant amount of new development at Grantham is anticipated under both policies 3 and 4 of the EMRP and policy SP1 of the CS. This emphasis on expansion is reinforced by the Growth Point status of the town. In order to deliver this growth the CS envisages Greenfield development as well as brownfield, and the Council does not suggest that the Greenfield status of the site is in itself a factor against the proposals. As described by the CS Inspector, the principle of extending the urban area of Grantham is compatible with the spatial strategy. [60, 137]

241. The Council's closing case included a reference to the CS's vision of a balance of jobs, housing and infrastructure, with the suggestion that the quantitative aspect of the proposal would disrupt this balance [65]. Some third parties have also raised concern about the need for job opportunities in conjunction with new housing [176, 182, 210]. However, this point did not form part of the Council's planning evidence or reasons for refusal [136]. In numerical terms, the housing figures included in the development plan are minimum levels of provision rather than ceilings, with scope for provision in excess of these. Taking the proposal together with the Sustainable Urban Extensions (SUEs) and other sites in the emerging Grantham Area Action Plan (GAAP), the minimum would be exceeded by some 25%. The proposal equates to 13% of the minimum requirement for Grantham over the period 2006-2026. At this relative scale the proposal would not result in an excessive level of housing provision such as to fundamentally undermine or distort the strategy, especially bearing in mind the pro-growth context [28, 37, 124, 135, 136].

242. Nevertheless, there are important qualifications to the policies that provide this context. The EMRP policies in policies 26 and 27 emphasises the need to avoid or minimise damage to heritage assets, and these are given protection by policy EN1 of the CS [29, 35, 60]. Under CS policy SP1, Greenfield sites should be "appropriate", and paragraph 5.1.5 sets out a number of criteria which include accessibility and potential impact on historic assets [32]. Findings on the heritage and sustainability considerations, dealt with below, will therefore need to be taken into account in assessing the proposal against these policies.

243. In addition, policy SP1 also contains the provision that details of specific sites (including urban extension sites) will be included in a Grantham AAP, and that permission will only be granted on a less sustainable site where it has been proven that there are no other more sustainable options available or there are other overriding material considerations. Paragraph 5.1.6 indicates that the allocation of additional appropriate and sustainably located sites within and on the edge of the built up area of the town to ensure that a range of sites is available throughout the plan period will be through the GAAP. This process was anticipated by the CS Inspector. The appeal site is not included for development in the emerging GAAP. To that extent, the proposal cannot be said to have the full support of policy SP1, and any support would be reduced by adverse findings on sustainability and heritage impact. [32, 63, 78] (my emphasis)

244. A specific area of concern that has been raised is the potential impact of the proposal on the transport elements of the spatial strategy. The two road proposals of the East-West (Southern) Relief Road and the Pennine Way Link are clearly identified as important infrastructure elements of the Core Strategy (policy SP3), which are seen as potentially bringing wider benefits including reduced congestion, modal shift, employment and reduced bridge strikes. These objectives are reflected in the Local Transport Plan. The benefits of these projects and that their delivery is closely linked to the Southern Quadrant and North West Quadrant SUEs were points recognised by the CSS Inspector. She set out a concern that a further strategic housing location could inhibit delivery of the roads and the consequent benefits. The SUE landowners argue that prices and rates of sale could be adversely affected by allowing the appeal proposal, thus slowing build rates and delaying delivery of the roads [33, 39, 66-73, 138-141, 189, 200-206].

245. There is no definitive evidence to demonstrate that the proposal would actually affect the progress of the SUEs [140]. Indeed, the Council's concern is couched in terms of possibility and risk rather than certainty [73]. The appellants reasonably point out that the emerging GAAP envisages that other non-SUE sites coming forward in parallel with the SUEs during this period with similar numbers of units, and that wider access to the housing market is a national objective [141]. Nevertheless, in the appellant's evidence there was an acceptance of the principle of such an impact from allowing further residential development outside the SUEs, thereby limiting the question to the scale of development that might give rise to this effect [72]. The scale of the appeal proposal is such that a relationship with the rate of development on other large Greenfield sites elsewhere on the outskirts of Grantham could reasonably be anticipated on the basis that they would be likely to occupy an overlapping market. The importance given to the road schemes in the CS supports a cautious approach. The degree of risk to early delivery of the SUEs is sufficient for this to be a material factor against the proposal.

246. To summarise on the development plan, the principle of the growth of Grantham and its expansion onto Greenfield sites accords with the spatial strategy. However, an adverse impact on heritage assets would conflict with important policy objectives, and a site is required to perform well in terms of sustainability in order to comply with the strategy. In addition, this site has not been identified through the development plan as the strategy expects, and the development would give rise to a material risk to the early deliverability of identified SUEs and the associated important road proposals."

18. The Inspector then turned to the second main consideration, "Housing Land Supply". He summarised the policy of PPS3 of considering planning applications for housing favourably where a local planning authority cannot demonstrate an up-to-date 5 year supply of deliverable sites, having regard to other policies and considerations. He then analysed the position, as follows:

"248. The District's [Council's] agreed supply for the purposes of the current appeal is a period of 4 years, thus triggering paragraph 71 [of PPS3]. The shortfall below 5 years, while not marginal, is not so severe as to represent a clear failure in supply. The CS Inspector anticipated some shortfall in the early years of delivery of the SUE sites [82]. Understandably, reference is also made by the Council to the effects of economic conditions [82, 129]. Supply has nevertheless fallen significantly below the trajectory [126]. Moreover, the emphasis of current Government policy as expressed in Planning for Growth is to improve the potential for delivery of new development. While the 5 year requirement applies to the whole District, the supply of only around 2.3 years in Grantham is also a factor to be taken into account given the emphasis on supply from the town in the development plan and its Growth Point status [128, 129].

249. Although the proposal at most would contribute around 0.3 years to the 5 year supply, the provision of up to 200 units over that period would be a significant number. The addition to supply beyond 5 years is also not to be discounted given the Growth Point status. The provision of affordable housing on the site is unlikely to be only a displacement from elsewhere, and is to be welcomed given the demonstrated shortage of such housing. While the evidence on need for elderly persons housing is sparse, the specialist provision for this within the development would appear to amount to a particular benefit of the scheme.

250. Turning to the considerations set out in paragraph 69 of PPS3, to which paragraph 71 requires there to be regard, there is no dispute by the Council on the scheme's successful compliance with factors 1, 2 and 4 (achieving high quality and a good mix of housing, and using land effectively and efficiently) … Factor 3, the suitability of the site for housing, raises the issues of heritage and highways impact and environmental sustainability. These are to be considered below. The findings on these are also relevant to the last factor, which is the relationship with the wider objectives and spatial vision for the area. Two further matters arise on this: the mechanisms set out in the CS for dealing with a housing land supply shortfall, and whether the proposal is premature in relation to the emerging GAAP.

251. The approach of the CS (in paragraph 5.1.7) for dealing with a shortfall was endorsed by the CS Inspector. It is of a sequential nature [38, 87, 131]. The first step is to re-prioritise the phasing of allocated sites. This refers to the GAAP, which includes a number of sites for development in the post-2016 period. The GAAP is not yet adopted. There are objections to the site allocations and this reduces the weight it carries. There is no evidence of scope to bring sites forward through this mechanism or an intention to do so. As a result there is no immediate prospect of the 5 year supply being addressed in this way [78, 131, 132, 143]. However, this is a matter that remains to be explored by way of examination of the GAAP. Similarly, although there is also no evidence of sites being brought forward by way of a partial review of allocations, which is second step, this is also related to progression of the GAAP [78]. The third step is the grant of permission for additional sites. In principle the development of an un-allocated site is therefore in line with the CS, subject to meeting requirements on appropriateness and location (addressed below), but the expectation is that this would follow consideration of site phasing and allocations in the GAAP. This leads on to the question of prematurity." (my emphasis)

19. The Inspector moved on to the third main consideration of "Prematurity". Again his analysis of this issue is at the centre of the present application and should be set out in full:

"252. The advice in paragraphs 17 to 19 of 'The Planning System: General Principles' is that refusal of planning permission on grounds of prematurity may be appropriate where a proposed development is so substantial, or where the cumulative effect would be so significant, that granting permission could prejudice the DPD by predetermining decisions about the scale, location or phasing of new development which are being addressed in the policy in the DPD. A clear demonstration of how the grant of permission would prejudice the outcome of the DPD process is required.

253. Certain relevant matters with respect to such decisions have already been established by the EMRP and CS. In particular, these are the acceptability in principle of substantial development at Grantham, including on Greenfield sites; that housing provision numbers are minima; and the identification of the SUEs together with the accompanying road schemes set out in the CS. This approach does not rule out further Greenfield development including at Manthorpe, as acknowledged by the CS Inspector [123]. However, she expected this to be considered through the GAAP [78]. In part this reflected a need for further work to be undertaken on highways and heritage matters, which the appellants have sought to address with the current application [123]. There was also concern about the potential impact on the SUE schemes (as considered above).

254. In addition, with the provision in the CS for further allocations to be dealt with through the GAAP, there remain matters involving the location, scale and phasing of development to be considered in relation to these. This includes the adequacy of allocations to meet strategic objectives. [75, 78]

255. Examination of the GAAP, and of the Site Allocation and Policies DPD for non Grantham sites, is imminent [47, 76]. Government guidance emphasises the importance of the plan-led system and local involvement in this. The GAAP is at an important stage and granting permission for the proposal now would involve material prejudice to the GAAP process by predetermining the addition of a currently unallocated large Greenfield development for immediate release. Such prejudice does not depend on a demonstration that, were the appeal allowed, currently identified GAAP sites would have to be deleted or would be unlikely to be developed. Although the GAAP, as with the CS, contemplates the possibility of housing development on unallocated sites, the allocated sites are clearly a fundamental element in its policy response to housing requirements and are built in to the sequential process of dealing with any housing land shortfall. While important concerns have been raised about the scope to bring sites forward in accordance with the initial steps of the CS paragraph 5.1.7 approach, that is a matter which can be expected to be addressed through the examination [75, 78, 79, 131, 132, 142, 143].

256. The prematurity issue in this case is naturally to be assessed on the basis of the particular circumstances rather than being bound by previous decisions taken in different contexts [76, 77, 142]. Having regard to the above identified degree of prejudice to the GAAP policy on housing development, it can be concluded that prematurity arises as a valid concern."

20. The Inspector then dealt with the further considerations of "Heritage Assets", "Highways", "Sustainability", and "Conditions and Obligations". In the light of the grounds of appeal put forward in this application, I need not refer to the Inspector's analysis of those considerations, to which there is in effect no challenge.
21. Given the earlier detailed analysis of the relevant considerations under the headings referred to above, the Inspector's overall conclusions were relatively brief and it is convenient to set them out in full:

"299. The proposal is consistent with the principle established in strategic policy of substantial new development at Grantham, including its outward growth on Greenfield sites. The size of its residential content in conjunction with other allocated development would not be such as to fundamentally undermine or distort the spatial strategy.

300. The proposed development would, however, give rise to harm to the settings of highly graded designated heritage assets at Belton. Although this harm would be less than substantial, it would nevertheless be a serious adverse consequence and conflict with objectives of the development plan. There is a requirement in national policy to weigh the benefit of the proposal against the harm, and recognise that the greater the harm to the significance of heritage assets the greater the justification that will be needed. In the circumstances of the current identified harm, this means that a strong degree of justification is required.

301. The proposal would generate increased traffic which would have a negative impact on the operation of the highway network in the area. On a fair and reasonable basis of assessment, and within the context of the scale of development, this could be expected to amount to a moderate adverse effect, with no major safety implications. However, the available modelling evidence does not represent worst case assumptions, and there is a degree of risk in relying on these findings.

302. Some aspects of the development would comply with sustainability objectives. These include internal design features, the incorporation of elements of mixed use, and securing of bus service, footway/cycleway and travel plan measures. In other respects it would be less successful, having regard to the location relative to the town centre and other uses and the degree of engagement with the surroundings.

303. There is an expectation in the development plan that details of urban extension sites will be brought forward through the GAAP. The site is not included in the emerging version. The proposal also gives rise to an unquantifiable but nevertheless tangible concern about risk to the timely delivery of the identified SUEs and hence important associated road proposals. In these respects, together with the harm to heritage assets and reservations about sustainability, the proposal is therefore not fully in keeping with the spatial vision for the area as expressed in policy SP1 of the CS.

304. The absence of a 5 year housing land supply in the District indicates in favour of the proposal. Although the shortfall is not extreme, Government policy and the expectations for Grantham give emphasis to delivery of economic growth. The addition to the 5 year supply would at most be 0.3 years, but a significant number of units together with affordable housing and specialist housing for the elderly would be provided by the scheme.

305. In some respects the development would perform well on the factors identified in national housing policy. The shortcomings with respect to heritage and highways impact and sustainability are not so extreme as to establish that the site is unsuitable for housing, but give rise to conflicts with the spatial vision for the area as set out above.

306. The emerging GAAP takes forward a mechanism in the CS for dealing with a shortfall in housing land supply. There are important concerns raised about the scope to bring additional land forward through the initial steps of reviewing site allocations. The final step allows consideration of granting permission for additional sites. The matter is not clear cut, but it is considered that it would unreasonably stretch the implied flexibility in the CS to find that the proposal is in accordance with the development plan in this respect. This is because the process assumes the existence of further DPDs which currently do not exist in adopted form.

307. Furthermore, there are matters relating to the scale, location and phasing of housing development at Grantham that remain to be determined through the GAAP. This is at an advanced stage, and allowing the proposal would predetermine the addition of a currently unallocated large Greenfield development for immediate release. This prejudice to the DPD warrants a genuine concern about prematurity.

308. In the overall balance, the proposal would provide the benefit of up to 200 units added to the 5 year housing land supply, together with a gain to the longer term supply and specific provision of affordable and specialist elderly housing, and is in accordance with elements of the spatial vision. Set against this are the heritage and highways harm and the conflicts that arise with the development plan, including the risk to delivery of the CS road schemes and reservations about sustainability, together with prejudice to the merging DPD. In conclusion it is considered that the factors in favour are insufficient to outweigh those against granting permission."

22. Following the conclusion of the inquiry, but before the Secretary of State had issued his decision, the Secretary of State received further representations regarding the appeal.
23. In a letter dated 10 February 2012 the Claimant's solicitors had contended that two matters material to the appeal had come to their attention:

"1. The serious concerns raised by the Examining Inspector in relation to the Grantham Area Action Plan.

2. Lincolnshire County Council's recent decision to set aside a budget of £30 million to facilitate the delivery of an east-west bypass, to ease through-traffic congestion within Grantham town centre and at other key transport nodes. That funding will be used to deliver the proposed bypass during the period 2013-2017."

24. The letter continued as follows:

"As regards point 1 above, this clearly has implications in relation to the soundness of the Grantham Area Action Plan. We enclose, for your kind attention, a copy of a letter dated 2 February received by our client from the EIP Programme Officer together with the Examining Inspector's note referred to in that letter. As indicated above, the note raises serious concerns in regard to the soundness of the AAP, and gives a clear steer to the local planning authority that a request for modification to the AAP will need to be made to remedy what the Examining Inspector refers to as the "… potential shortcomings which I have identified".

It is clear from the above and the content of the note that adoption of the proposed AAP is likely to be significantly delayed until such time as the local planning authority ("LPA") is in a position to provide substantially more information and evidence in support of their proposed strategy; particularly in terms of the overall delivery of the LPA's two "preferred" urban extensions. It is also noted that the Inspector makes reference to the fact that 800 houses and other development could come forward on sites outside of these two urban extensions, without delivery of the new highways and bridges required to be implemented as part of those two urban extensions.

It is also noted that the Inspector makes reference to the fact that 800 houses and other development could come forward on sites outside of these two urban extensions, without delivery of the new highways and bridges required to be implemented as part of those two urban extensions.

Our client has always maintained as part of its case to the Section 78 Inquiry Inspector, that the LPA's arguments that the appeal application was somehow "premature" to the outcome of the AAP process has been overplayed and is totally misconceived. These recent comments by the Examining Inspector totally vindicate our client's arguments in this respect, and fully support out client's position on the timing and other issues arising in relation to the delivery of the necessary infrastructure required to allow the LPA's two "preferred" housing allocations to proceed. In light of this, we have been asked to bring the Examining Inspector's comments to the attention of the Secretary of State as these go to the heart of (and effectively render redundant) the LPA's arguments on prematurity.

As part of it's [sic] case at the Section 78 Appeal Inquiry, the LPA also raised arguments pertaining to traffic congestion in Grantham town centre. This was in the context that the competition that our client's scheme may present to the LPA's preferred options for development would fundamentally undermine the delivery of an east-west bypass.

The decision by Lincolnshire County Council to allocate £30 million to facilitate the delivery of the east-west bypass during the next 5 years now removes one of the key objections to our client's scheme. In short, the LPA's objection in this regard has been swept away by the County Council's announcement to provide this key piece of infrastructure. Again, this is a very material planning consideration, which we would ask you to bring to the attention of the Secretary of State as part of his decision making process."

25. By letter dated 24 February 2012, the Council wrote in response to the Planning Inspectorate and to the Claimant's solicitors, as follows:

"In both instances the author of the Shoosmiths correspondence is speculative and inventive in terms of impacts and has critically over-played the potential issues. Further in respect of the LCC draft budget allocation, they have wholly misinterpreted the basis of this funding.

Dealing with the LCC funding first, it is correct that a sum of £30 million has been indicated in the County's draft budget. Likewise South Kesteven District Council (SKDC) is also considering making funds available for the delivery of infrastructure in our own budget process. Critically both SKDC and LCC are indicatively allocating these funds on the basis of an investment, not grant, and will be looking to fully re-coup such investments in full from the development from S106 planning obligations throughout the lifetime of the development. The onus remains upon the landowners for the delivery of the sustainable urban extension to provide the full funding for the provision of the strategic infrastructure required. It is simply wrong to suggest that the funding earmarked for the East-West bypass in any way resolves the transport issues that make the Manthorpe development unacceptable and which were cogently evidence at the recent public inquiry.

Indeed this emphasises the importance of not re-directing the market to an ad hoc out of centre location in the open countryside as that will retard the ability of the two allocated SUEs to come forward which in turn will frustrate the provision of the roads to the wider prejudice of the proper planning of the area.

Turning to the GAAP, it is correct that the Examining Inspector has raised a number of issues. However, the significance of this is over-played and I enclose the Inspector's note of the exploratory meeting held on 15 February 2012. It is evident in this note that the Inspector is highlighting the options for the Council: he is not declaring the GAAP as unsound nor is he directing the Council to revisit its process, rather he is seeking clarity on delivery issues. The Council will naturally be giving careful consideration to the Inspector's comments and, without prejudice, it seems likely, although subject to the Council's decision making processes, the revisions to the plan will be proposed. In the event of these revisions being subject to consultation, we believe the likely date for adoption is in autumn 2012 rather than an earlier anticipated adoption in late summer. This delay in plan making is not substantial or significant and does not necessitate approval of a development proposal entirely outside the proper plan making process. Again, that this was the case was properly evidenced at the public inquiry and its substance is in no way diminished by the short delay that could be occasioned by the pre-hearing modifications to the GAAP.

In the circumstances, with the likely request to the Inspector to modify the plan, the case advanced by the recent correspondence is ill-considered and any delay is simply overstated.

The reference to the Inspector's query re: the construction of 800 dwellings outside the two sustainable urban extensions without key infrastructure they support is acknowledged. In preparing the GAAP, the Highways Authority has not objected to the incremental and phased delivery of such sites across Grantham through the plan period; indeed each site is well located in relation to the town centre and available transport infrastructure. Crucially as a matter of fact the Highways Authority has not objected to the GAAP.

In summary, neither issues raised in the Shoosmiths correspondence is of any material weight to the Secretary of State's decision on the matters and evidence highlighted in the Council's submissions at the public inquiry last November."

The Challenged Decision

26. In the decision letter the Secretary of State referred to the correspondence above as follows:

"6. Following the close of the Inquiry, the Secretary of State received three written representations, from Robert Pask dated 14 November 2011, Shoosmiths dated 10 February 2012 and South Kesteven District Council dated 24 February 2012, which he has carefully considered. However, he does not consider that this correspondence raises any new issues which would affect his decision or require him to refer back to parties prior to reaching his decision. Copies of this correspondence are not attached to this letter but may be obtained on written request to the above address."

27. The Secretary of State then set out the main issues correctly identified in the Inspector's Report, stating, so far as is relevant to the present application, the following:

"Development Plan

13. The Secretary of State agrees with the Inspector's reasoning and conclusions on the development plan as set out in IR239-246. He agrees that the principle of the growth of Grantham and its expansion onto Greenfield sites accords with the spatial strategy. He also agrees that adverse impact on heritage assets would conflict with important policy objectives, and a site is required to perform well in terms of sustainability in order to comply with the strategy. He further agrees that the development would give rise to a material risk to the early delivery of the sustainable urban extensions and associated important road proposals identified in the CS (IR246).

Housing land supply

14. The Secretary of State agrees with the Inspector's reasoning and conclusions on housing land supply as set out in IR247-251. He notes that there is a housing land supply shortfall. He agrees that, in principle, the development of an un-allocated site is in line with the CS, subject to meeting requirements on appropriateness and location, but the expectation is that this would follow consideration of site phasing and allocations in the GAAP (IR251).

Prematurity

15. For the reasons given in IR252-256, the Secretary of State agrees that there are matters relating to the scale, location and phasing of housing development at Grantham that remain to be determined through the Grantham Area Action Plan. This is at an advanced stage, and allowing the proposal would predetermine the addition of a currently unallocated large Greenfield development for immediate release. This prejudice to the GAAP warrants a genuine concern about prematurity (IR307), even allowing for any potential delay as a result of the future actions identified by the GAAP Inspector in his Note of Exploratory Meeting on 15 February 2012 (as referred to in the letters of Shoosmiths and South Kesteven District Council in paragraph 6 above)."

28. The Secretary of State's overall conclusion was as follows:

"20. The Secretary of State agrees with the Inspector's overall conclusions at IR299-308. He considers that the proposal is consistent with the strategic policy of substantial new development at Grantham, and that it would provide up to 200 dwellings towards the shortfall in the 5 year land supply, including affordable and specialist housing. However, there are a number of factors weighing against the proposal. These include; the heritage and highways harm; conflicts with the development plan, including the risk to the delivery of the CS sustainable urban extensions and associated road schemes; some concerns about sustainability; and prejudice to the emerging GAAP, which should determine the scale, location and phasing of housing development at Grantham.

21. Having weighed up all of the relevant material considerations, the Secretary of State considers that the proposal conflicts with the development plan and national planning policies in a number of respects and though there are material considerations weighing in its favour, these are not sufficient to outweigh this conflict."

The Legislative Framework

29. The planning legislation and decisions on planning applications are underpinned by the "plan-led" approach which encourages development control decisions to be taken in accordance with the statutory prescribed "development plan" under the planning acts.
30. Thus section 38(6) of the Planning and Compulsory Purchase Act 2004 ("PCPA 2004") provides:

"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."

31. This needs to be read in conjunction with Section 70(2) of the 1990 Act which provides:

"In dealing with such an [planning application] the authority shall have regard to –

(a) the provisions of the development plan, so far as material to the application

...

(c) any other material considerations."

32. Section 38 of the PCPA 2004 defines the development plan for these purposes as follows (so far as material):

"(3) For the purposes of any other area in England the development plan is –

(a) the regional strategy for the region in which the area is situated (if there is a regional strategy for that region), and

(b) the development plan documents (taken as a whole) which have been adopted or approved in relation to that area, and

(c) the neighbourhood development plans which have been made in relation to that area.

…

(5) If to any extent a policy contained in a development plan for an area conflicts with another policy in the development plan the conflict must be resolved in favour of the policy which is contained in the last document to be adopted, approved or published (as the case may be) to become part of the development plan."

33. The statutory processes to be followed in respect of the adoption of development plan documents as part of the development plan are set out in some detail in Part 2 of the PCPA 2004. These include processes of consultation, formulation of earlier drafts by the local planning authority, consideration of objections and submission of a final draft for independent examination by an Inspector appointed by the Secretary of State once the local planning authority considers that its proposal is sound.
34. In the present case, the development plan comprised:

i) The East Midlands Regional Plan ("EMRP")

ii) The CS; and

iii) Saved parts of the South Kesteven Local Plan ("the Local Plan").

35. However, the Council was also in the process of seeking to adopt the GAAP as part of the development plan documents for its area. At the time of the Claimant's planning appeal, the Council had reached the position of formulating the GAAP to the stage where it had been submitted to the Secretary of State for independent examination pursuant to the process identified in Part 2 of the PCPA 2004.

Statutory Challenges to Planning Appeal Decisions

36. Section 288 of the 1990 Act (1) provides that:

"(1) If any person –

(a) is aggrieved by an order to which this section applies and wishes to question the validity of that order, on the grounds –

(i) that the order is not without the powers of this Act, or

(ii) that any of the relevant requirements have not been complied with in relation to that order, …

he may make an application in the High Court under this section."

37. A decision may only be challenged under s288 on normal administrative law grounds: see Seddon Properties Ltd v Secretary of State (1978) P&CR 26 per Forbes J at 26-28.
38. The decision maker must properly understand the relevant development plan policies in order to apply them and cannot give them any meaning it chooses. Planning policies are not statutory or contractual provisions and are not to be construed as such. Many policies are framed in language whose application to a given set of facts requires the exercise of judgment within the jurisdiction of the decision-maker: see Tesco Stores v Dundee City Council [2012] UKSC 13 Lord Reed at [19]-[23].
39. Where such judgment arises, the weight to be attached to material considerations and matters of planning judgment are within the exclusive jurisdiction of the decision maker: see Tesco Stores Ltd v Secretary of State [1995] 1 WLR 759 at 780f-h.
40. There is no obligation to refer to every material consideration, only the main issues in dispute. The scope for drawing any inference that the decision maker has not fully understood the materiality of a matter to the decision is necessarily limited to the main issues, and then only when all other known facts and circumstances appear to point overwhelmingly to a different decision: Bolton MDC v Secretary of State for Environment (1995) 71 P&CR 309 per Lord Lloyd at 314-5.
41. Reasons can be briefly stated, the degree of particularity depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to substantial doubt as to whether there was an error of law, but such adverse inference will not readily be drawn. The decision letter must be read in a straightforward manner, recognising it is addressed to a party well aware of the issues involved and arguments advanced: South Bucks DC v Porter (No. 2)[2004] UKHL 33 Lord Brown at [36].

The First Ground of Challenge

42. Mr Paul Tucker QC, on behalf of the Claimant, first submits that the Inspector, followed in this respect by the Secretary of State, misunderstood and/or misapplied the relevant development plan.
43. The argument appeared to run as follows.
44. SP1 (see paragraph 10 above), which formed an important constituent of the overall CS of the Council, provided:

"In all cases planning permission will only be granted on a less sustainable site where it has been proven that there are no other sustainable options available, or there are other overriding material considerations."

45. The Inspector had concluded that the appeal proposal

"… would not result in an excessive level of housing provision such as to fundamentally undermine or distort the strategy …"

Furthermore, the Inspector had recognised that, subject to important qualifications, the appeal proposal tended to promote the objectives of national policy, as articulated in PPS3, in particular paragraph 71 thereof (see the Report at paragraphs 248-250, cited at paragraph 18 above).

46. However, the appeal proposal related to a site that had not been specifically identified and allocated for housing development in SP1 and that was not at the time planned for inclusion as such in the emerging GAAP. Although it was conceded that SP1 in terms contemplated that specific sites would be allocated through the GAAP procedures (see paragraph 10 above), the Inspector (followed by the Secretary of State) fell into error because he treated that circumstance as in effect a bar on, or at least a practically insuperable hurdle to, the grant of planning permission to an application of the kind put forward in the appeal proposal. But, it was argued, that circumstance did not "inhibit or prevent other sites coming forward prior to (or even following) adoption of the GAAP, even if these are deemed to be a less sustainable option" (Claimant's skeleton argument, paragraph 5.8). In other language, there was, according to the Claimant, "an obvious policy vacuum", because the GAAP was not yet definitively established (and might prove not to be definitively established in the terms of the Council's current proposal); and the bar or practically insuperable hurdle would impermissibly block the grant of planning permission to proposals of the kind put forward by the Claimant, a result that was inconsistent with both SP1 and national policy, as articulated in PPS3 (see Claimant's skeleton argument, paragraph 5.10).
47. In my view, the short answer to this first ground is that, on a fair reading of the Inspector's Report, the Inspector did not create a bar or practically insuperable hurdle as maintained by the Claimant. In this context, it is important to read the Report as a whole.
48. First, the Inspector noted that the potential for outward growth of Grantham at Manthorpe (including the appeal site) was considered at the Preferred Options Stage of the CS. The Council did not take that aspect forward, and the CS Inspector assessed that that additional growth "would render the Core Strategy unsound" (Report, paragraph 50).
49. At paragraph 32 of the Report, the Inspector correctly stated the effect of Policy SP1 in the CS (see paragraph 10 above), noting in particular that details of specific sites (including urban extension sites) would be included in the GAAP. Permission would be granted only where there were no other more sustainable options available or there were other overriding material considerations, and paragraph 5.1.5 of SP1 gave criteria for assessing all potential residential sites which were located in accordance with the spatial strategy. Paragraph 5.1.6 indicated that the GAAP would allocate additional appropriate and sustainably located sites both within and on the edge of the built up area of the town to ensure that a range of sites was available throughout the plan period. The appeal site was not included for development in the emerging GAAP. Government guidance emphasised the importance of the plan-led system and local involvement in that system (Report, paragraph 255).
50. In his conclusions, the Inspector again correctly stated the relevant provisions in SP1, noting once more that the allocation of additional and sustainably located sites was contemplated, according to paragraph 5.1.6 of SP1, to be achieved through the GAAP procedure. The appeal site was not included for development in the emerging GAAP, and "to that extent", concluded the Inspector "the proposal cannot be said to have the full support of policy SP1". (See paragraph 17 above).
51. In the context of the second main consideration, "Housing Land Supply", the Inspector again stated that "in principle" the development of an unallocated site was in line with the CS, but the "expectation" was that such a development would follow "consideration of site planning and alterations in the GAAP". That was an entirely accurate description of the position.
52. Mr Tucker QC seeks to construe the words of the Report that I have emphasised in paragraphs 17 and 18 above as evidence that the Inspector was treating the non-inclusion of the appeal site in the emerging GAAP as a bar or practically insuperable hurdle, and that the Inspector was misunderstanding or misapplying SP1. In my judgment, he was doing no such thing. In the light of the Report read fairly as a whole, the Inspector was treating the non-inclusion in the emerging GAAP as no more than a material consideration in evaluating the planning merits of the appeal proposal, a consideration that was recognised within SP1 itself. That circumstance tended to count against the appeal proposal (for sound reasons of planning policy), but it did not create a bar or practically insurmountable hurdle for the appeal proposal, as alleged by the Claimant. On the contrary, it had to be weighed with all other relevant circumstances, including those that supported the appeal proposal. The Inspector carried out the necessary and appropriate evaluation of all relevant circumstances, including the aspect relating to the emerging GAAP, in a manner that was, in my view, balanced, careful and scrupulously fair.
53. The criticism of the Inspector's report in this respect is, therefore, misplaced. The Secretary of State was also fully entitled to endorse, as he did, the Inspector's conclusion as regards the first material consideration, namely, the relationship of the proposal to the development plan. For these reasons, I reject the first ground of appeal. For the avoidance of doubt, events bearing on the GAAP that occurred after the Secretary of State took his decision can have no bearing on the lawfulness of that decision.

The Second Ground: Prematurity

54. The Inspector, of course, dealt with "Prematurity" as the third material consideration, at paragraphs 252 of the Report (see paragraph 19 above).
55. The Inspector referred to relevant guidance in these paragraphs, but for the sake of completeness on this ground, I set out paragraphs 17-19 of The Planning System: General Principles (2005):

"17. In some circumstances, it may be justifiable to refuse planning permission on grounds of prematurity where a DPD is being prepared or is under review, but it has not yet been adopted. This may be appropriate where a proposed development is so substantial, or where the cumulative effect would be so significant, that granting permission could prejudice the DPD by predetermining decisions about the scale, location or phasing of new development which are being addressed in the policy in the DPD. A proposal for development which has an impact on only a small area would rarely come into this category. Where there is a phasing policy, it may be necessary to refuse planning permission on grounds of prematurity if the policy is to have effect.

18. Otherwise, refusal of planning permission on grounds of prematurity will not usually be justified. Planning applications should continue to be considered in the light of current policies. However, account can also be taken of policies in emerging DPDs. The weight to be attached to such policies depends upon the stage of preparation or review, increasing as successive stages are reached. For example:

Where a DPD is at the consultation stage, with no early prospect of submission for examination, then refusal on prematurity grounds would seldom be justified because of the delay which this would impose in determining the future use of the land in question.

Where a DPD has been submitted for examination but no representations have been made in respect of relevant policies, then considerable weight may be attached to those policies because of the strong possibility that they will be adopted. The converse may apply if there have been representations which oppose the policy. However, much will depend on the nature of those representations and whether there are representations in support of particular policies.

19. Where planning permission is refused on grounds of prematurity, the planning authority will need to demonstrate clearly how the grant of permission for the development concerned would prejudice the outcome of the DPD process."

56. It was not entirely clear to me from the Claimant's written skeleton argument in what manner it was alleged that the Inspector, followed by the Secretary of State, had erred in his approach to prematurity, having regard to relevant guidance.
57. However, at the hearing Mr Tucker QC advanced the proposition that "predetermining decisions about the scale, condition or planning of new development" in paragraph 17 of The Planning System referred exclusively to sites other than the site in respect of which an application was putatively applied for. It was argued that the grant of permission for the site that was the subject of the appeal process would not inhibit in any material way the Council from granting permission in the future to any other application for housing development, so long as the necessary criteria for such grant of permission were satisfied. No "prejudice", therefore, would be sustained to the operation of the system of fair and efficient planning, as the concept of "prejudice" was intended to be understood by paragraph 17.
58. Furthermore, it was submitted that if "predetermination" and "prejudice" were taken to have reference to the putative planning application under consideration, the rejection of such application on the ground of "predetermination" and "prejudice" would amount to the application of a kind of "bootstrap" reasoning that was both illogical and inimical to planning policy.
59. In my view, the Claimant's submissions under this ground rest upon far too restrictive an interpretation of "predetermination" and "prejudice". In this case the relevant site had not been allocated for housing development under the CS, and the CS contemplated that further allocations for that purpose would be determined under the GAAP procedures in accordance with the criteria identified in the CS. The emerging GAAP had identified certain specific locations for further housing development. Following the efficient and democratic procedures that were intended to lead to a finalised GAAP, the site that was the subject of the appeal process was not so identified. In plain language, ad hoc grant of planning permission in respect of the latter site would be likely to "determine" the location of sites for housing development when, for sound reasons of planning and political policy, such determinations were planned to be made in accordance with the GAAP procedure and criteria. There was, therefore, a plain tension (to put the matter at its lowest) between giving full efficacy to the GAAP procedure and criteria, and the grants of ad hoc planning permission in a domain that was indisputably within the intended scope and contemplation of such procedure.
60. The Inspector was, therefore, correct in his understanding of "predetermination" and "prejudice" in the present context, and in his application of that concept to the circumstances of the present case. It is notable that again he did not give definitive weight to this circumstance: he simply put it in the balance with all other relevant circumstances to reach his final conclusion. Mr Tucker submitted that, if the Inspector's approach were correct, all planning applications outwith the GAAP or similar procedures would inevitably fail, so defeating other important planning objectives. I do not agree. Prematurity, as correctly understood and applied, is simply one relevant circumstance among others, and the weight to be given to it will depend crucially on the individual circumstances of each case. Prematurity, no more than the contemplated operation of area action plans, is not a bar or practically insuperable hurdle to the grant of planning permission.

The Third Ground: Prejudice to the SUEs

61. This ground relies on the correspondence that post dated the Inspector's Report, in particular the representations made by the Claimant's solicitors concerning the provisional draft budget allocation in respect of the east-west road (see paragraphs 23-25 above).
62. Mr Tucker QC contended that this new event, objectively analysed, materially changed the risk profile in respect of the adverse effect on the deliverability of the SUEs and the associated highways. He suggested that any competent decision maker, in the position of the Secretary of State, would have appreciated that such a material change had occurred, and he would in terms have addressed his mind to it in the decision letter. At the relevant part of the decision letter (see paragraph 26 above), the Secretary of State simply said that there was no "new issue". That was tantamount to saying that there was nothing new on the east-west front, which was manifestly incorrect. This, therefore, showed that the Secretary of State "failed to have regard to the change in the risk that one road in respect of the Southern Quadrant would not be delivered", as Mr Tucker put it at the hearing.
63. Elegantly though this submission was advanced, it appears to me to be fundamentally flawed. First, it invites me to draw an inference that, because the Secretary of State did not specifically mention in the decision letter any potential material change in the relevant risk profile, he had not properly directed his mind to the question. That is precisely the kind of invitation which Lord Lloyd warned judges firmly to rebuff within the context of planning appeals (see paragraph 40 above). Apart from the considerations mentioned by Lord Lloyd, I would also respectfully suggest that judicial embarkation upon the course proposed by Mr Tucker in the present context, contrary to his Lordship's strictures, would allow the covert reception of arguments which in truth are designed to challenge the adequacy of the decision maker's reasoning, and which would not otherwise be admissible under that particular rubric (see paragraph 40 above). In this case the relevant "issue" was the adverse affect on the delivery of the SUEs. Within that issue there was a matter concerning delivery of two highways. The Secretary of State had before him all material relating to the relevant "issue", including that touching on the matter of the highways. He concluded that nothing had occurred after the Inspector had reported that changed the position regarding the relevant "issue". He, therefore, dealt with the relevant "issue" to the extent required by the applicable law.
64. In any event, the inference that I am invited to make would simply not be warranted. It is plain from the Inspector's report that timely and effective delivery of the SUEs was in itself a public benefit, putting aside the aspect of the highways. Nothing had occurred since the Inspector reported that could have materially affected his conclusion regarding the risk to delivery of the SUEs as such. Given that continuing and important risk, there was, therefore, simply no need for the Secretary of State to deal explicitly with the matter of the draft budget regarding funding for the east-west road. Furthermore, there were two roads associated with the SUEs, and only one was the subject of the draft budget. That plainly weakened the case, if any, for having to deal explicitly in the decision letter with the draft budget, for there was nothing to suggest that the risk to deliverability of the other road was at all affected by the budget proposal. Finally, the point seems to me inherently unattractive. One risk identified by the Inspector was to the deliverability of the east-west road. At its highest the Council appeared to be taking steps to ensure that the east-west road would be delivered, even if the Southern Quadrant development were stalled. However, the risk (in the form of what Mr Tucker described as the grant of an "interest free loan" by the Council to the developers) was now metamorphosing into a risk to tax payers, because full and timely repayment of the assumed loan remained crucially dependent on the effective and reasonably expeditious delivery of the development in question. The Secretary of State, however, did not expressly rely on what appears to me this unattractive feature of the Claimant's argument, and, even putting it to one side, the inference that I am invited to make in any event would simply be unsupportable for the reasons already given.
65. For these reasons, the third and last ground also fails, and I dismiss this application.