England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ
		2nd March 2012

JUDGE GILBART QC :

A INTRODUCTION

1. This application by the Claimant Fox Strategic Land and Property Limited ("Fox") is made under section 288 of the Town and Country Planning Act 1990 (" TCPA") . By it the Claimant seeks to quash a decision letter of 29^th September 2011 by the First Defendant Secretary of State for Communities and Local Government (" SSCLG"), whereby he dismissed an appeal made by Fox under section 78 TCPA (and recovered by him under s 79 TCPA) against the refusal of the Second Defendant Local Planning Authority , Cheshire East Council ("CEC") to permit the erection of up to 280 dwellings, together with public open space, highway works and associated works on land off Abbey Road and Middlewich Road, Sandbach, Cheshire. An Inspector appointed by SSCLG had held an inquiry over three days in April 2011. She had reported to the SSCLG on 15^th June 2011.
2. The site consists of some 15.6 hectares of agricultural land.
3. Before turning to the planning issues identified, it is necessary to say something about local authorities in Cheshire, and about what constituted the Development Plan for the purposes of section 38(6) TCPA at the time of the Decision Letter. The site falls within what was Congleton Borough, a district council comprising part of Cheshire. Thus, there were two tiers for planning purposes: Cheshire County Council, which was the strategic planning authority (and therefore was responsible in past years for the preparation of the Cheshire Structure Plan.) Congleton Borough Council was responsible for the production and adoption of the Local Plan for its Borough Area. In 2009 a new Unitary authority (Cheshire East) replaced various district councils in its area, including Congleton. It also includes what was the district of Crewe and Nantwich , which lies adjacent to the west.
4. The Development Plan relating to the site (and therefore that relevant under section 38(6) TCPA) consisted of

i) The North West of England Regional Spatial Strategy to 2021 (" RSS") which was published by the SSCLG in 2008 pursuant to the Planning and Compulsory Purchase Act 2004;

ii) The Congleton Borough Local Plan Review (" CBLP") which had been statutorily adopted in 2005.

5. However, under the 2004 Act, local planning authorities are to prepare a Local Development Framework for their areas. When the Cheshire East LDF is adopted, it will replace the CBLP. At the time of the inquiry and of the decision letter, some work had been done on the LDF by CEC, but as will become apparent, the process was at a very early stage.
6. Fox was not the only developer interested in bringing forward proposals in Sandbach. Three areas of what is largely previously developed land (referred to in the papers by the pithy if unattractive acronym of PDLs) were the subject of planning consents for about 720 dwellings. Another developer (Richborough Estates) was seeking permission for 269 dwellings on another greenfield site. It had also been refused planning permission, which had led to another appeal before the SSCLG, which had been heard at inquiry in February 2011. Fox had argued unsuccessfully that the two appeals should be heard together. At the time of the inquiry into the Fox case, the decision letter and Inspector's report had not been issued, although the Inspector had submitted his report in late March 2011. Fox urged at its own inquiry that the two decisions be taken together by the SSCLG. The decision letter dismissing the Richborough appeal was issued on 4^th July 2011. On 15^th August 2011 proceedings were issued in this Court to quash that decision on various grounds (as appear below). The SSCLG submitted to judgement by a consent order on 18^th October 2011. As will also become apparent, the conclusions of the SSCLG in that decision letter, in parts which were not the subject of challenge, cannot be reconciled with conclusions on the same topic in the Fox decision letter.
7. It was common ground between all parties that there was what the Inspector at the Fox appeal called "a serious and significant shortage" in the supply of housing land. As I shall come to, national policy in the form of Planning Policy Statement 3 ("PPS 3") sought a supply of available and suitable housing land with a reasonable prospect of producing housing within a timescale of 5 years^[1] . The supply at the Fox inquiry lay somewhere between 2.75 (Fox) and 3.65 (CEC) years. At the Richborough inquiry, it was between 2.75 (Richborough) and 3.25 (CEC) years.

B THE REASONS FOR REFUSAL

8. Although there were other reasons which were originally advanced by the CEC, the only reason actually contested at the inquiry was the first, namely

"The proposed residential development within the open countryside would be contrary to the provisions of Policies PS8 and H6 of the adopted Congleton Borough Local Plan First Review. Whilst it is acknowledged that the Council does not currently have a five year housing land supply and that, accordingly, in the light of the advice contained in PPS3 it should consider favourably suitable planning applications for housing, the current proposal is not considered to be 'suitable' as it is located on the periphery of Sandbach, rather than Crewe. It would undermine the spatial vision for the area and wider policy objectives as it would be contrary to the general thrust of the Core Strategy Issues and Options which directs the majority of new development towards Crewe, as well as the Council 's Draft Interim Planning Policy on the Release of Housing Land and Policies RDFJ and MCR3 of the North West of England Plan Regional Spatial Strategy to 2021, which articulate the same spatial vision. This would be contrary to PPS3 and PPS1, which states these emerging policies are material considerations. For these reasons the Housing Land Supply arguments advanced by the applicants are considered to be insufficient to outweigh the general presumption against new residential development within the Open Countryside as set out in the adopted development plan'.

C DEVELOPMENT PLAN POLICIES

9. The Inspector summarised relevant Development Plan policy as follows at paragraphs 12- 14 of her report:

•"PLANNING POLICY

12. The Development Plan includes the North West of England Plan Regional

Spatial Strategy to 2021 (RSS) (CD5), and the Congleton Borough Local Plan

Review (LP) adopted in 2005 (CD7.1).

13. The policies in the RSS that I consider to have the most relevance to this

appeal are as follows:

• DP 4 — development should accord with a sequential approach to

make the best use of existing resources and in infrastructure.

• DP 5 — development should be located so as to reduce the need to

travel, especially by car.

• RDF 1 — development plans and strategies should accord with the 4

priorities of the Regional Spatial Framework. Crewe is listed as a

third priority. Sandbach is not mentioned.

• RDF 2 - development in rural areas should be concentrated in}Key

Service Centres (the Council considers Sandbach to be a Key Service Centre, see LDF background report paragraph 6.16, CD17).

• L 4 — Table 7.1 lists the distribution of regional housing provision,

and includes an indicative target proportion of housing on brownfield land (80% for the former Borough of Congleton, 60% for Crewe).

• MCR 3 — relates to the southern part of the Manchester City Region in which Cheshire East lies. Plans and strategies should sustain and promote economic prosperity consistent with the environmental character of the area and the creation of attractive and sustainable communities by, amongst other things, allowing residential development to support local regeneration strategies and to meet identified local needs particularly for affordable housing in sustainable locations which are well served by public transport.

• MCR 4 — plans and strategies should support sustainable economic

growth in Crewe.

14. The saved policies in the LP that I consider to have the most relevance to

this appeal are as follows:

• PS8 — in open countryside (the appeal site is outside the settlement

boundary) development will be permitted only if it is for certain

specified purposes, none of which relates to the appeal proposal.

• H6 — residential development in open countryside will not be

permitted unless it falls into certain specified categories, none of

which relates to the appeal proposal.

• H2 — Sandbach should get 25% of new housing in the 5 sub-

divisions of the former Congleton Borough."

•

D NATIONAL POLICY ON HOUSING LAND AND ON PREMATURITY

10. This appeal was heard at a time when the new LDF was in preparation, and against a background of an admitted deficiency in the housing land supply. It is therefore germane to identify the areas of Ministerial Policy Guidance which deal with those issues.
11. PPS 3 includes the following paragraphs in the Introduction

•1. Planning Policy Statements (PPS) set out the Government's national policies on aspects of planning in England. PPS3 sets out the national planning policy framework for delivering the Government's housing objectives. This complements, and should be read together with, other relevant statements of national planning and housing policy(in particular PPS1: Delivering Sustainable Development ……….)

6. The policies in this PPS should be taken into account by Local Planning Authorities and Regional Planning Bodies in the preparation of their Local Development Documents and Regional Spatial Strategies (…………………….). They should consider the extent to which emerging Local Development Documents and Regional Spatial Strategies can have regard to the policies in this statement whilst maintaining plan-making programmes.

7. On publication of this PPS, Local Planning Authorities will need to assess and demonstrate the extent to which existing plans already fulfil the requirement set out in this statement to identify and maintain a rolling five-year supply of deliverable land for housing, particularly in connection with making planning decisions (see paragraphs 68 to 74).

•
12. It then contains a section entitled " National Planning Policies" which includes sub headings of

•i) " Achieving high quality housing" (paragraphs 12- 19)

ii) " Achieving a mix of housing" (paragraphs 20- 24)

iii) "Market housing" (paragraphs 25-26)

iv) "Affordable housing" (paragraphs 27- 30)

v) "Making effective use of existing housing stock" (paragraph 31)

vi) "Assessing an appropriate level of housing" (paragraphs 32-35)

vii) " Providing housing in suitable locations" (paragraphs 36- 51). That heading has its own sections on "Identifying suitable locations for housing development" (paragraphs 36- 39) " Effective use of land" (paragraphs 40- 44) and " Efficient use of land" (paragraphs 45-51)

viii) " Delivering a flexible supply of land for housing" (paragraphs 52- 61).

•
13. At paragraphs 54 and 57 this is stated ( its emphasis)

•" 54. Drawing on information from the Strategic Housing Land Availability Assessment and or other relevant evidence, Local Planning Authorities should identify sufficient specific deliverable sites to deliver housing in the first five years. To be considered deliverable, sites should, at the point of adoption of the relevant Local Development Document:

– Be Available – the site is available now.

– Be Suitable – the site offers a suitable location for development now and would contribute to the creation of sustainable, mixed communities.

– Be Achievable – there is a reasonable prospect that housing will be delivered on the site within five years.

57. Once identified, the supply of land should be managed in a way that ensures that a continuous five year supply of deliverable sites is maintained i.e. at least enough sites to deliver the housing requirements over the next five years of the housing trajectory^[2]."

•
14. In the next section " Managing Delivery," these passages appear

•" Determining planning applications

68. Local Planning Authorities should take into consideration the policies set out in Regional Spatial Strategies and Development Plan Documents, as the Development Plan, as well as other material considerations. When making planning decisions for housing developments after 1st April 2007, Local Planning Authorities should have regard to the policies in this statement as material considerations which may supersede the policies in existing Development Plans.

69. In general, in deciding planning applications, Local Planning Authorities should have regard to:

– Achieving high quality housing.

– Ensuring developments achieve a good mix of housing reflecting the accommodation requirements of specific groups, in particular, families and older people.

– The suitability of a site for housing, including its environmental sustainability.

– Using land effectively and efficiently.

– Ensuring the proposed development is in line with planning for housing objectives, reflecting the need and demand for housing in, and the spatial vision for, the area and does not undermine wider policy objectives e.g. addressing housing market renewal issues.

70. Where Local Planning Authorities have an up-to-date five year supply of deliverable sites and applications come forward for sites that are allocated in the overall land supply, but which are not yet in the up-to-date five year supply, Local Planning Authorities will need to consider whether granting permission would undermine achievement of their policy objectives.

71. Where Local Planning Authorities cannot demonstrate an up-to-date five year supply of deliverable sites, for example, where Local Development Documents have not been reviewed to take into account policies in this PPS or there is less than five years supply of deliverable sites, they should consider favourably planning applications for housing, having regard to the policies in this PPS including the considerations in paragraph 69.

72. Local Planning Authorities should not refuse applications solely on the grounds of prematurity"

•
15. In 2004 the Office of the Deputy Prime Minister issued "The Planning System: General Principles", which is still current Ministerial Policy. It includes this passage

Prematurity

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."

E THE INSPECTOR'S CONCLUSIONS

16. The parts relevant to these proceedings read as follows

"82. I consider that the main consideration in this appeal is the implications of the proposed residential development on the spatial vision for Cheshire East and Sandbach.

THE PLANNING POLICY CONTEXT

83. LP policies P58 and 1-16 (CD7.1), both of which are Development Plan policies, indicate that the proposed development should be refused because the site is in open countryside where development is severely restricted. I consider this to be fundamental to the planning policy context for this appeal [14, 17]^[3].

84. Equally fundamental is the housing requirement figure for the 3 former boroughs that now form Cheshire East, set out in policy L 4 of the RSS (CD5). In my view, the appellant and the Council are right to use this as the agreed starting point for their housing land supply calculations. It is based on robust and up-to-date data [13, 18].

85. RSS policies RDF 1, RDF 2 and MCR 4 all point to the fact that plans and strategies should favour the higher order settlement of Crewe, not Sandbach. To my mind, this is a material consideration, but not one that should be given substantial weight bearing in mind the Government's proposed abolition of RSSs and the progress of the Localism Bill [13, 46].

86. The emerging Core Strategy (CD19) also favours development in Crewe, but it is at an early stage, with adoption unlikely before the end of 2013. For that reason I consider that its Crewe-centric policies should be given only limited weight [15, 47].

87. By the Council's own admission, its Interim Planning Policy (CD15), which also favours development in Crewe, does not usurp the Development Plan, nor does it have the status of a Supplementary Planning Document. I therefore consider that it should attract very little weight. Indeed, I note that the Council does not rely on the IPP to support its case in this appeal [15, 31, 48].

The supply of housing land in Cheshire East

88. Cheshire East does not have 5 years' supply of housing land. Instead, it has somewhere between 3.65 years (the Council's figure) and 2.75 (the appellant's figure). The difference between 3.65 and 2.75 arises largely from uncertainties about availability and deliverability. However, I share the agreed view of the Council and the appellant that the difference is immaterial and that the indisputable fact is that the Council cannot demonstrate a 5 years' supply of housing land in Cheshire East, and the shortage is serious and significant [19, 36].

89. It therefore follows that the provisions of paragraph 71 of PPS3 are triggered [20, 39]. This makes it clear that the appeal should be favourably considered having regard to the considerations in paragraph 69. Paragraph 69 lists 5 considerations to which decision-makers should have regard. In my view, the first 4 would be met:

• although the proposal is in outline, there is no reason to doubt that the housing would be anything other than high quality

• there would be a good mix of houses, including 35% affordable homes and 25% low-cost market housing

• the site is suitable for housing, it is in a sustainable and accessible location (walking and cycling isochrones and bus catchment areas are shown in Figures 2, 3 and 4 of Doc F), and there are no technical constraints to its development that could not be overcome [37].

• the illustrative Masterplan indicates that the land would be used effectively and efficiently for a mixture of housing and open space, including a 3.4ha community park.

90. It is the fifth and final consideration of PPS3's paragraph 69 that is critical to this appeal. In a nutshell, it states that the proposed development should, amongst other things, reflect the spatial vision for the area, and should not undermine the wider policy objectives for housing. I set out my views on this aspect of the appeal in the next 3 paragraphs.

The spatial vision for Cheshire East and Sandbach

91. In view of the forthcoming abolition of the RSS, together with the fact that the Core Strategy is at a very early stage and the IPP can be afforded only very limited weight, the spatial vision for Cheshire East currently lacks clarity and longevity.

92. The emerging Core Strategy appears to take its lead from the RSS and favour Crewe for large-scale housing developments. But there can be no certainty that, when finally adopted in 2013, this would still be the case. The LDF process is at an early stage, and things could change [64, 65]. I do not share the appellant's argument that, whatever happens, 280 dwellings could not possibly prejudice the outcome of the Core Strategy [47]. The proposed 280 dwellings may be only a small percentage of the overall housing requirement but, if the appeal were allowed, it would send the wrong message to other developers who might also be tempted to "jump the gun".

93. Therefore, so far as the fifth and final consideration of PPS3's paragraph 69 is concerned, it is not possible to say with any certainty that the appeal proposal would reflect the spatial vision for the area. Moreover, at the current time, it is impossible to say whether or not the development of the site would undermine the wider policy objectives for housing. With this in mind, I consider that the encouragement in PPS3's paragraph 71, to favour housing proposals in areas where there is no 5-year supply of deliverable sites, should be tempered accordingly [39].

Would the development of the greenfield appeal site discourage

development of PDL sites elsewhere?

94. This is a matter over which there can be no certainty. The evidence

suggests that it is the current economic climate rather than any

specific problem with the PDL sites themselves which has inhibited

their redevelopment. Three PDL sites in Sandbach have planning

permission for housing, subject to S106 agreements. When the

economic climate improves, it is reasonable to suppose that house-

building would start at the Fodens factory site, Rookery Bridge and

the Albion chemical works, yielding 723 dwellings in total. This is a

substantial number, bearing in mind that the housing requirement

for the whole of Cheshire East is 1,150 dwellings a year [27, 43].

95. If 280 houses were to be built on the greenfield land of the appeal site, there is a possibility that prospective developers of the PDL sites might consider that Sandbach's modest housing market could not immediately absorb a further influx of houses. The development of PDL sites could therefore be delayed, denying Sandbach the associated regenerative and sustainability benefits that flow from the re-use of urban land. However, it has to be said that there is no clear evidence to substantiate this supposition [28, 56].

Other relevant appeals

96. The Secretary of State's recent decision (Doc 18) to dismiss the Wesham appeal post-dated the Government's White Paper Local Growth: realising every place's potential (CD21). No two sites are the same, but there is enough commonality between the circumstances surrounding the Wesham site and those surrounding the appeal site to make the Wesham decision a material consideration in the determination of this appeal. Paragraph 20 of the Secretary of State's decision, relating to the uncertainties surrounding housing distribution in the absence of a statutory planning context, has particular resonance with this appeal [26, 40, 41]."(Judge's note: Wesham is a settlement within Fylde Borough in Lancashire, over 60 miles away)

"97. The Richborough Estates appeal is also a material consideration. There is no reason why the Secretary of State should come to the same decision on both appeals; it is a well-established principle that each proposal should be considered on its own merits. Nevertheless, the cumulative effect of simultaneously granting outline planning permission for 549 dwellings (280 on the appeal site and 269 on the Richborough Estate's site) on 2 greenfield sites outside the settlement boundary of Sandbach prior to the completion of the LDF process would, in my view, have significant and possibly serious repercussions on the plan-led delivery of housing [6, 25, 42, 58, 59].

Affordable housing

•98. If the proposed development were to go ahead, 35°Jo of the houses would be affordable homes. This is 5% more than the 30% sought by the Council in its Interim Planning Statement on Affordable Housing (CD14). The 98 affordable homes would give a considerable boost to the net shortfall of 1,243 affordable homes each year in Cheshire East. For that reason, I consider that the provision of 98 affordable homes is a material consideration to which substantial weight should be given [29, 44].

Agricultural land quality

99. Paragraph 28 of PPS7 establishes that, when considering development proposals, the presence of Best and Most Versatile (BMV) agricultural land should be taken into account alongside other sustainability considerations. In this particular case, 96% of the appeal site is BMV land. I accept that some of the other SHLAA sites around Sandbach are likely to have an equally high proportion of BMV land, and that land around Crewe is generally of lower agricultural quality. However, this does not mean that the high agricultural land quality of the appeal site should be disregarded and, in my view, it is a material consideration which weighs against the appeal proposal [30, 45, 53, 60].

The importance of maintaining a green gap between Sandbach and

Elworth

100. The presence of open fields between Elworth and Sandbach is highly valued by local people [53]. Clear views are difficult to obtain from public vantage points. The fields can be glimpsed between the houses in Middlewich Road, Abbey Road and Park Lane, but the best views are from rear gardens [10]. Public footpaths do not cross the appeal site, and the fields do not have any special landscape designation. The proposed 3.4ha community park would ensure that a large swathe 9f land would remain open and, unlike at present, the park would allow public access and enjoyment. I have therefore reached the view that the loss of part of the green gap between Elworth and Sandbach would not in itself be sufficiently harmful to make the appeal proposal unacceptable.

Wildlife, trees, flooding, subsidence and archaeology

101. I am satisfied that these matters have already been resolved, or can be resolved at the reserved matters stage or by the imposition of conditions

[53, 68].

Traffic generation

102. ………………………………..

103. Therefore, in the absence of any evidence to the contrary, I have reached

the view that the additional traffic that would be generated by the development would not in itself be sufficiently harmful to make the appeal proposal unacceptable [54, 55].

Albion Works

104. ………………………………….

THE PLANNING BALANCE

105. As with most other planning appeals, benefits have to be weighed against harms. The benefits to be weighed in favour of the appellant's proposal are:

• The Council has between 3.65 and 2.75 years' supply of housing. There is therefore a serious and significant shortage which the proposed 280 dwellings would help to alleviate.

• The provision of 98 affordable homes would help to alleviate the serious and significant shortage of affordable housing.

• The site is on the urban fringe of Sandbach in a highly accessible location, and would therefore have sustainability benefits.

• There is no evidence that the development of the appeal site would prejudice the development of PDL sites elsewhere.

• The development would support the Government's Planning for Growth agenda, albeit without any accompanying economic development or regenerative benefits [23, 38].

The harms to be weighed against the proposal are:

• The development would "jump the gun" before the Core Strategy had been adopted, thereby prejudicing the fairness and effectiveness of the LDF process. Those who are promoting sites through the LDF process would be unfairly disadvantaged [64, 65].

• The Core Strategy is at a very early stage and the proposed

development could prejudice the Council's emerging spatial vision for the area.

• Better and more sustainable sites could be overlooked.

• There would be a loss of 15.6ha of BMV agricultural land.

• The principles of Localism would be undermined, and local people would lose faith with the planning system. In the words of Fiona Bruce, Member of Parliament for the Congleton Constituency (which includes Sandbach) 'If we are being truly genuine about our belief in localism then their views (le those of local people) should, above all, be respected" [32, 50, 53- 65].

106. On balance, I have reached the view that the harms outweigh the benefits and the appeal should be dismissed. This is largely because the development would be contrary to the Government's Localism Agenda and, furthermore, it has the potential to prejudice the fairness and effectiveness of the LDF process.

107. I am also of the view that, overall, the proposed development would be contrary to the Development Plan. Non-conformity with LP policies PS8 and H6 is a particular concern.

108. In reaching my recommendation I have taken into account all other matters raised, but none outweighs my conclusion that there would be materially harmful implications for the spatial vision for Cheshire East and Sandbach if the proposed residential development were to be granted outline planning permission before the LDF process has been completed.

RECOMMENDATION

109. I recommend that the appeal be dismissed.

110 However, if the Secretary of State were to take a different view, I

recommend that a "minded to approve" letter be sent to the main parties with a request that the obligations in the (Unilateral Undertaking) be reconsidered in order to address the deficiencies relating to affordable housing [71-81]. …………….."

•

F THE RICHBOROUGH DECISION

17. By the time the Defendant SSCLG had issued his decision letter on the Fox appeal, he had issued his decision on the Richborough appeal on 4^th July 2011. As already noted, the Claimant Fox had argued that the two appeals should be determined by the SSCLG together. Although the challenge under section 288 TCPA 1990 had been issued by Richborough, at that point the SSCLG had not submitted to judgement.
18. The Richborough Inspector had recommended that the appeals before him be allowed, and planning permissions granted. The SSCLG disagreed. He stated, insofar as is relevant to this matter:

Matters arising after the close of the inquiry

•4. Following the close of the inquiry, the Secretary of State received

representations from Pegasus Planning Group on behalf of your clients

Richborough Estates dated 30 March 2011. The representations drew attention to a Written Ministerial Statement (WMS) of The Rt Hon Greg Clark MP, dated 23 March 2011, and in particular that account should be taken of this statement in reaching a decision on this application. The Secretary of State has had regard to a Written Ministerial Statement (WMS) of The Rt Hon Greg Clark MP, dated 23 March 2011, and in particular that account should be taken of this statement in reaching a decision on this application. The Secretary of State wishes to clarify that he has taken the principles in the WMS into account in determining this application and has given significant weight to the need to secure economic growth and employment. However, he does not consider that

this raises any new issues which would affect his decision or require him to refer back to parties prior to reaching a decision.

5. In addition a letter was received by the Planning Inspectorate from Fox Strategic Land & Property Ltd, dated 5 May 2011, about an appeal on a site at land South of Middlewich Road and East Abbey Road, Sandbach (APPIRO66OIAIIOI2I4I564INWF). The letter drew attention to a request that that appeal be determined together with the appeals subject of this letter. The Secretary of State considers that each case should be determined on its own merits. Therefore, he does not consider this request would affect his decision or require him to refer back to parties prior to reaching a decision. Copies of all post inquiry correspondence can be made available on written request.

•

Policy considerations

•6. In deciding the applications, the Secretary of State has had regard to section 38(6) of the Planning and Compulsory Purchase Act 2004 which requires that proposals be determined in accordance with the development plan unless material considerations indicate otherwise.

7. In this case, the development plan comprises the saved policies of the Congleton Borough Local Plan adopted 2005, Cheshire 2016 Structure Plan Alteration and the North West of England. Plan Regional Spatial Strategy to 2021 (RSS), September 2008. The Secretary of State considers that the development plan policies most relevant to the proposals are those summarised in the Inspector's report….. and the Statement of Common Ground….

8. Other material considerations which the Secretary of State has taken into account include Planning Policy Statement I (PPSI) Delivering Sustainable Development; Planning Policy Statement 3 (PPS3) Housing; Planning Policy Statement 7 (PPS7) Sustainable Development in Rural Areas; Planning Policy Guidance Note 13 Transport; Circular 05/2005 Planning Obligations; and the Community Infrastructure Levy (CIL) Regulations 2010.

9. The decision of the Court on 10 November 2010 in Cala Homes (South) Ltd v Secretary of State for Communities and Local Government and Winchester City Council [2010] EWHC 2886 (Admin) resulted in the reinstatement of Regional Strategies (RSSs), including the reinstatement of the North West of England Plan Regional Strategy, as part of the development plan for the area.

10. The Secretary of State has also made it clear, following the judgment on 10 November 2010, that it is the Government's intention to revoke RSSs, and the provisions of the Localism Bill which is now before Parliament reflect this intention. This gave rise to a subsequent decision of the Court on 7 February 2011 in Cala Homes (South) Ltd v Secretary of State for Communities and Local Government [2011] EWHC 97 (Admin) which held that the Government's intention to legislate to revoke regional spatial strategies was capable of being a material consideration. However, while the Secretary of State has taken this matter into account in determining this case, he gives it limited weight at this stage of the parliamentary process.

Main issues

11. The Secretary of State considers that the main issues in this case are those set out by the Inspector in his conclusions IR 140 and IR 191 and below.

Countryside protection policies

12. The Secretary of State notes that the appeal site is an open field, still in active agricultural use, and within the open countryside as defined in the Congleton Borough Local Plan (LP). He agrees with the Inspector's conclusion that the appeal scheme is contrary to relevant LP policies that aim to restrict residential development in the open countryside. He also accepts the Inspector's view that while the land is not of significant landscape merit its development would represent an extension of the urban area of Sandbach outwards from a clearly defined established settlement boundary contrary to the key principles of PPS7. The Secretary of State therefore agrees with the Inspector's conclusion that the proposal would cause material harm to countryside protection policies (IRl4l-

IR143).

Housing land supply. delivery and affordable housing

13. The Secretary of State notes that there is no dispute between the parties that across Cheshire East there is not a 5 year land supply. The parties agree that there is between 2.75-3.25 years supply, which equates to an estimated 5 year shortfall of between 2000 to 2600 new dwellings. He accepts the Inspector's view that this sizeable shortfall is a factor to which significant weight should be attached (1R145-1R146).

14. The Secretary of State has also had regard to the Inspector's assessment of the 5 year land supply for the town of Sandbach, based on the RSS annual requirement for the former Congleton Borough area. He notes that if all the Sandbach sites identified in the 2010 strategic land availability assessment (SHLAA) come forward, around 600 dwellings would be delivered over 5 years, well ahead of the 5 year requirement of 375 dwellings, but that the appellant has strong reservations about the overall deliverability of some of the major sites. He further notes that the Council now considers that about 410 dwellings would be delivered while the appellant suggests that around 280 would be delivered under the 5 year requirement (lR148). Having carefully considered all the available evidence, the Secretary of State concludes that, on balance, the Council's

revised estimate of deliverable sites over the next five years (as summarised by the Inspector in Table 1, IR page 37) is more accurate and that there is sufficient land to meet the 5 year requirement in Sandbach.

15. Whilst accepting that there needs to be some degree of flexibility in the supply of sites, given his conclusion in paragraph 14, the Secretary of State does not agree with the Inspector that this scheme is necessary to avert the risk of the 5 year requirement for new dwellings in Sandbach not being met (1R149-IRI 51).

16. The Secretary of State agrees with the Inspector's conclusion that in terms of affordable housing, the proposed provision of 67 low-cost market dwellings and 108 dwellings (mix of social rented and intermediate tenure) would have a materially beneficial effect upon the provision of AH in the area (1R152-IR159).

Spatial objectives of the development plan

17. The Secretary of State notes that in the RSS Crewe is identified as the priority for future growth (1R160) and that the Congleton Borough Local Plan identifies Sandbach as an area that should accommodate 25% of future housing growth. He accepts the Inspector's conclusions that while the spatial objectives of the development plan and other economic plans seek to prioritise Crewe, there is scope for new development in a town such as Sandbach (1R160-1R162) and accepts that the appeal scheme, in terms of size, is consistent with the spatial objectives of the LP. However given his conclusion above relating to the risk of not meeting the growth requirement, he does not consider that the release of a greenfield site for a scheme of this size in this location is appropriate.

Regeneration

18. The Secretary of State notes that the RSS gives priority to development re-using existing buildings and previously developed land within settlements and sets indicative targets of at least 80% for the proportion of housing to be provided on brownfield land within Congleton Borough. The Council considered that, if the appeal were to be developed then only 59% of housing built during the next 5 years within the Borough would be on brownfield land, below the RSS target (IR167). The Secretary of State accepts that a judgement has to be made as to whether permitting this scheme would have the effect of impeding the best use of previously developed land (lR169) However, while he notes the Inspector's view that the evidence suggests that development would not result in an over-supply of housing land relative to the size of those requirements and that it would not cause material harm to regeneration proposals in the area, he considers there is no clear cut evidence to support this conclusion (lRl7O). The Secretary of State does not, therefore, agree with his overall conclusion as he considers that, like the Council (IR-168), should this scheme, on a large greenfield site, proceed it would make it extremely difficult for committed brownfield sites to be developed and therefore the risk of achieving the indicative target of 80% on brownfield sites may be put at risk (1R171).

Government policies on planning and climate change

19. The Secretary of State agrees with the Inspector (lR172) that the key

Government objectives in terms of this issue are ensuring the development

supports existing communities with good access to jobs and key services; and delivering patterns of urban growth that help secure the fullest possible use of sustainable transport and which overall reduce the need to travel, especially by car.

20. He accepts the Inspector's assessment that Sandbach is not a town where significant growth is expected and many of the residents work elsewhere, with commuting being facilitated by the proximity of the M6 (lR173). He also agrees with the Inspector that this arrangement is at odds with the objective of ensuring new housing is in an area with good local access to jobs and suggests it would be difficult to conclude that the appeal site is in a location where the fullest possible use of sustainable transport is possible. However, he does not accept the view of the Inspector IR 176 that the appeal site is in a location, 1.2 miles from Sandbach railway station and 500 metres from the nearest bus stops, where future residents would have reasonable options to use sustainable methods of public transport. He therefore agrees that because of the shortage of local employment and the distance between the appeal site and Sandbach centre the development is not wholly consistent with Government policies on planning and climate change and he considers that this factor taken with the limited options available for using sustainable public transport weighs against the proposed development (1R174-1R177).

The effect of the proposal upon the hedgerow on the site frontage

21. …………………………….

22. The Secretary of State notes and accepts the Inspectors conclusion IR-139 that it is agreed between the parties that if Appeal A fails then so too should Appeal B. Accordingly, as he has decided to refuse planning permission for Appeal A he does not agree with the Inspector's conclusion lR-195 that planning permission should be granted for Appeal B.

Conditions

23……………………………………

Planning obligations

24. ……………………………..

Overall Conclusions

25. The Secretary of State has taken into account that Cheshire East does not have an up to date five year supply of deliverable sites and the advice in PPS3, that in such cases, planning applications for housing should be considered favourably in accordance with the criteria in paragraph 69 of PPS3. However, he agrees with the Council's revised estimate of deliverable sites over the next five years and therefore concludes that there is sufficient land to meet the 5 year requirement in Sandbach and he is not satisfied that the evidence before him indicates a slippage in housing delivery in Sandbach will occur. In addition, the Secretary of State considers that the location of the appeal site is contrary to the countryside protection policies in the LP, is outside clearly defined established settlement boundary which is contrary to the key principles of PPS7, and not in a location where the fullest possible use of sustainable transport is possible. The Secretary of State further considers that the distance between the appeal site and Sandbach centre and the limited public transport options makes the development not wholly consistent with Government policies on planning and climate change.

26. Having weighed all these considerations in the planning balance, it is the Secretary of State's opinion that the scales are tipped against the proposal in terms of its overall conformity with the development plan, its conflict with PPS7 and national policies for planning and climate change.

Formal Decision

27. Accordingly, for the reasons given above, the Secretary of State disagrees with the Inspector's recommendations and hereby dismisses your client's appeals and refuses outline planning permission."

•
19. Before the decision had been issued in the Fox case, proceedings were issued by the Richborough developer. It is hardly surprising that they were, given the SSCLG's concentration on the existence of a 5 year supply in a sub-area, instead of the Cheshire East area. In essence the grounds were

•i) The SSCLG had addressed the 5 year land supply question by using the existence of a 5 year land supply in Sandbach to dismiss the significance of the CEC wide deficiency

ii) If Sandbach was the proper area in which to consider the "5 year" issue, the SSCLG gave no adequate reasons for disagreeing with his Inspector's conclusions on the adequacy of the supply

iii) The Inspector and SSCLG had been wrong to consider the shortfall in housing supply which had arisen since the start of the plan period of RSS

iv) The SSCLG gave no adequate reasons for rejecting the Inspector's conclusions on the supply of land on brownfield (i.e. PDL) sites.

•
20. The SSCLG submitted to judgement on the basis that he made an error of law by introducing an additional requirement relating to the provision of a 5 year housing land supply in Sandbach.
21. The SSCLG has now by letter of 5^th December 2011, pursuant to Rule 19 of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000, invited representations on the following topics

•i) The relationship of the proposal to those policies in the development plan and PPS 3 for the provision of a 5 year housing land supply which the parties consider relevant to the SSCLG's "re-determination of the application" (sic). It was actually an appeal.

ii) The SSCLG stated that he will also consider representations concerning any material change in circumstances, fact or policy, which may have arisen since his decision of the 4^th July 2011 was issued, whether or not they pertain to the matters set out above.

•
22. The SSCLG has invited no representations on other parts of the Decision letter, and has stated by letter of 18^th January 2012 that he does not wish those making representations to address other issues raised during the inquiry.
23. I shall deal with the significance of his decision on the Richborough appeal below. Suffice it to say for the present that paragraph 17 (on spatial objectives) reaches very different conclusions to those in the eventual decision in the Fox appeal.

G THE DECISION LETTER IN THE INSTANT CASE

24. This was issued on 29^th September 2011. Insofar as it is relevant to the issues before the Court, it reads as follows

•"1. I am directed by the Secretary of State to say that consideration has been

given to the report of the Inspector, Ruth V Mackenzie BA(Hons) MRTPI who held a public local inquiry on 19, 20 and 27 April 2011 into your client's appeal under Section 78 of the Town and Country Planning Act 1990 against the decisions of Cheshire East Council to refuse outline planning permission for up to 280 dwellings, landscaping, open space, highway and associated works (ref.10/3471C).

2. On 10 January 2011, the appeal was recovered for the Secretary of State's

determination, in pursuance of section 79 of, and paragraph 3 of Schedule 6 to, the Town and Country Planning Act 1990. The appeal was recovered because it involves development of 150 or more dwellings on a site of over 5 hectares, which would significantly impact upon the Government's objective to secure a better balance between housing demand and supply and create high quality, sustainable, mixed and inclusive communities.

Inspector's recommendation and summary of the decision

3. The Inspector recommended that the appeal be dismissed and planning

permission refused. For the reasons given below the Secretary of State agrees with the Inspector's conclusions and her recommendation and has decided to dismiss the appeal and refuse planning permission. A copy of the Inspector's report (IR) is enclosed. All references to paragraph numbers, unless otherwise stated, are to that report.

Matters arising after the close of the inquiry

4. The Secretary of State referred back to parties on 21 July 2011 seeking

comments on post inquiry correspondence. Responses to this letter were

exchanged to the main parties on 28 August for any final comments. A schedule of correspondence received is at Annexed to this letter. The Secretary of State has taken this correspondence into account in reaching his decision. Copies of the correspondence can be provided on application to the address at the bottom of the first page to this letter.

Policy considerations

5. In deciding the application, the Secretary of State has had regard to section 38(6) of the Planning and Compulsory Purchase Act 2004 which requires that proposals be determined in accordance with the development plan unless material considerations indicate otherwise.

6. In this case, the development plan comprises the saved policies of the

Congleton Borough Local Plan adopted 2005 and the North West of England Plan Regional Spatial Strategy to 2021 (RSS), September 2008 .The Secretary of State considers that the development policies most relevant to the proposals are those summarised at IRl2-IR14 and the Statements of Common Ground.

7. Other material considerations which the Secretary of State has taken into account include Planning Policy Statement I (PPS1) Delivering Sustainable Development; Planning Policy Statement 3 (PPS3) Housing; Planning Policy Statement 7 (PPS7) Sustainable Development in Rural Areas; Planning Policy Guidance Note 13 Transport; Circular 05/2005 Planning Obligations; and the Community Infrastructure Levy (GIL) Regulations 2010.

8. The Secretary of State has taken account of the Written Ministerial Statement (WMS) of the Rt Hon Greg Clark MP, dated 23 March 2011, and in particular that account should be taken of this statement in reaching a decision on this application. The Secretary of State wishes to clarify that he has taken the principles in the WMS into account in determining this application and has given significant weight to the need to secure economic growth and employment. -.

9. The Secretary of State has also taken account of the draft National Planning Policy Framework which was issued for consultation on 25 July 2011. However, as it has been issued for consultation and may be subject to change, he has only given it little weight.

10. The decision of the Court on 10 November 2010 in Cala Homes (South) Ltd v Secretary of State for Communities and Local Government and Winchester City Council [2010] EWHC 2886 (Admin) resulted in the reinstatement of Regional Strategies (RSSs), including the reinstatement of the North West of England Plan Regional Strategy, as part of the development plan for the area.

11. The Secretary of State has also made it clear, following the judgment on 10 November 2010, that it is the Government's intention to revoke RSSs, and the provisions of the Localism Bill which is now before Parliament reflect this intention.. This gave rise to a subsequent decision of the Court on 7 February 2011 in Cala Homes (South) Ltd v Secretary of State for Communities and Local Government[2011] EWHC 97 (Admin) which held that the Government's intention to legislate to revoke regional spatial strategies was capable of being a material consideration. However, while the Secretary of State has taken this matter into account in determining this case, he gives it limited weight at this stage of the parliamentary process.

Main issues

12. The Secretary of State considers that the main issues in this case are those

set out by the Inspector in her conclusions IR 82.

The Planning System: General Principles: PPSI and PPS3

13. For the reasons given at IR 88 the Secretary of State agrees with the Inspector that the Council is unable to demonstrate the up-to-date supply of deliverable housing sites to comply with PPS3 and that across Cheshire East there is not a 5 year land supply. Therefore as required by paragraph 71 of PPS3, housing applications should therefore be considered favourably so long as there is no other objection. The Secretary of State therefore accepts the Inspector's view that the failure to demonstrate a 5 year supply of housing land and the shortage is both serious and significant and considers this a material consideration in favour of the appeal development to be weighed in the overall planning balance.

14. The Secretary of State notes that the Inspector goes on to assess whether the proposal is in line with the 5 matters set out in paragraph 69 of PPS3. The Inspector considers that the first 4 of these would be met: i.e. there is no reason to doubt that the housing would be anything other than high quality; there would be a good mix of houses (including 35% affordable homes and 25% low-cost market housing); the site is suitable for housing, and it is in a sustainable and accessible location and that it would utilise land efficiently and effectively. However, the inspector considers that it is the final consideration of PPS3's paragraph 69 that is critical to this appeal, i.e. would this development, amongst other things, reflect the spatial vision for the area and would it undermine the wider policy objectives for housing. The Secretary of State agrees with the Inspector's assessment on all these points.

15. The Secretary of State notes that the Inspector considers that in view of the forthcoming abolition of the RSS, together with the fact that the Core Strategy is at a very early stage and other planning documents can only be afforded only very limited weight, the spatial vision for Cheshire East currently lacks clarity and longevity. (IR 91) However, the Secretary of State considers that it is important to note that the RSS is still part of the development plan and carries due weight and that the RSS suggests that Crewe is the priority for large scale housing growth and that the emerging Core Strategy appears to take its lead from the RSS.

16. The Secretary of State agrees for the reasons given by the Inspector [IR 92-93] that the LDF process is at an early stage. He also agrees that things could change and that a scheme for 280 dwellings may represent a small percentage of the overall housing requirement but, if the appeal were allowed, would send the wrong message to other developers. He therefore accepts the Inspector's conclusion that the encouragement in PPS3's paragraph 71, to favour housing proposals in areas where there is no 5-year supply of deliverable sites, should be tempered accordingly.

17. The Secretary of State accepts the Inspector's view that there can be no certainty that the development of this greenfield site may discourage the

development of previously developed sites (PDL) (IR 94). He also notes that three PDL sites in Sandbach have planning permission for housing, subject to S106 agreements yielding 723 dwellings (IR 94) and accepts that this is a substantial number, bearing in mind that the housing requirement for the whole of Cheshire East is 1,150 dwellings a year. The Secretary of State further accepts the Inspector's view that when the economic climate improves it is reasonable to suppose that development of these sites will commence and that if 280 houses were to be built on the appeal site, there is a possibility that prospective developers of the PDL sites might consider that Sandbach's modest housing market could not immediately absorb a further influx of houses. Having considered available evidence, including responses to the reference exercise, the Secretary of State considers that development of PDL sites could be delayed, denying Sandbach the associated regenerative and sustainability benefits that flow from the re-use of urban land.

18. The Secretary of State accepts that the need for affordable housing in the area is substantial and, having regard to the PPS3 requirement for authorities to identify an adequate level of affordable housing (IR 39). He further agrees with the Inspector that the proposed provision of 35% affordable housing is a further point in the scheme's favour and is a material consideration to which substantial weight should be given [IR 98].

Loss of Agricultural Land

19. PPS7 establishes that, when considering development proposals, the presence of Best and Most Versatile (BMV) agricultural land should be taken into account alongside other sustainability considerations. For the reasons given at IR 99, the Secretary of State accepts that 96% of the appeal site is BMV land and agrees with the Inspector that the high agricultural land quality of the appeal site should not be disregarded and is a material consideration which weighs against the appeal proposal.

Green Gap

20. The Secretary of State notes that the open fields between Elworth and Sandbach are highly valued by local people and that the proposed 3.4ha community park would ensure that a large swathe of land would remain open and, unlike at present, the park would allow public access and enjoyment. However, while the Secretary of State accepts that the proposed community park would remain open, and although he agrees that the loss of part of the green gap would not in itself be sufficiently harmful to make the appeal proposal unacceptable, he considers the loss to be a factor that weighs against the proposal (IR 100).

Traffic Generation

21. The Secretary of State notes that both the local residents and Council considered the appellant's Transport Assessment had shortcomings but that the Council's highway manager did not recommend refusal of the planning application on transport grounds. He therefore accepts the inspector's conclusion that the additional traffic generated by the development would not in itself be sufficiently harmful to make the appeal proposal unacceptable (IR 102-103).

Other relevant appeals

22. The Secretary of State notes that the inspector has also had regard to other relevant appeals and accepts that these could be a material consideration The appeal by Richborough Estates was dismissed on 4 July but is subject to legal challenge in the High Court. The Secretary of State has attributed no weight to this matter in the decision before him.

Conditions

23. …………………………

Planning obligations

24. …………………………………

Overall Conclusions

25. The appeal proposal would accord with the RSS in terms of numerical Provision. It would also accord with PPS3 in contributing towards meeting the shortfall resulting from the Council's failure to demonstrate a five-year supply of housing land across Cheshire East, in achieving a good mix of housing on a sustainable site and in helping to meet the affordable housing shortfall in the area. However, these matters have to be considered against the proposal's conflict with saved development plan policies with regard to settlement boundaries and the restriction on development in the countryside, and the need to avoid the permanent loss of BMV land unless absolutely unavoidable. Having weighed all these considerations in the planning balance, it is the Secretary of State's opinion that the scales are tipped against the proposal in terms of its overall conformity with the development plan. In particular he considers that allowing the appeal in advance of establishing the appropriate level of future housing provision across the Cheshire East would pre-empt decisions on revised settlement boundaries before current uncertainties with regard to population growth and distribution can be settled in a statutory planning context. The Secretary of State also considers that the delivery of this Greenfield site for housing would increase the risk of PDL sites not being delivered.

Formal Decision

26. Accordingly, for the reasons given above, the Secretary of State agrees with the Inspector's recommendations and hereby dismisses your client's appeals and refuses outline planning permission for up to 280 dwellings, landscaping, open space, highway and associated works in accordance with application ref: 1012608C, dated 7 July 2010."

•

H THE CASE FOR THE CLAIMANT

25. Mr Tucker QC argues the following grounds

•i) The SSCLG has endorsed the Inspector's reference to the "localism agenda." Mr Tucker points out that while there is now a new Localism Act 2011, there is no policy issued which deals with this in the planning context. He points out that there is no policy which sets out anything called a "localism agenda," and contends that therefore the SSCLG has taken into account an immaterial consideration.

ii) At paragraph 13 of the decision letter the SSCLG has misdirected himself on the meaning of paragraph 71 of PPS3, by stating that, in a case where there is a 5 year shortfall, the paragraph says that favourable consideration should be given to housing applications so long as there is no other objection. He says that paragraph 71 directs one to paragraph 69, and that so far as housing policy is concerned, one should not look beyond that;

iii) If one looks to paragraph 69, it was agreed that the first four objectives were met. In the case of the last one, the Inspector, in a passage endorsed by the SSCLG, had held that the current spatial vision for Cheshire East lacked clarity and longevity, and that therefore one could not say whether (in the language of part of the fifth objective in paragraph 69) the appeal proposal would undermine wider housing policy objectives or not. Mr Tucker submits that therefore any conflict with the fifth objective (which both the Inspector and SSCLG said should "temper" the encouragement in paragraph 71) could carry no weight.

iv) He points out that the prematurity argument relied on by the SSCLG (i.e. the effect on the LDF process) was not relied on by CEL, who argued that the site conflicted with the spatial vision for the area. While it is open to the SSCLG to depart from his own policy, if he does so he must give adequate reasons for his departure. By his conclusions at paragraph 25, he has elected to treat the proposal as pre-empting decisions on revised settlement boundaries before current uncertainties with regard to population growth and distribution can be settled in a statutory planning context. In doing so, he has not followed his own policy on prematurity, and has either not understood it, or has given no adequate reasons for his departure from it.

v) The SSCLG disagreed with his Inspector on the weight to be attached to the policies of the RSS. She had said that it should not be given substantial weight, whereas the SSCLG had said that he had given only "limited weight" to the Government's intention to revoke RSS. Mr Tucker contends that the SSCLG could not endorse the Inspector's approach to the fifth objective (which flowed in part from her views about the limited weight to be given to RSS) when he was apparently giving it weight. He contended also that the Inspector (and therefore SSCLG) had wrongly concluded that the RSS favoured development in Crewe over development in Sandbach. He also argued that CEC, in its case to the inspector (and the final submissions of its counsel were exhibited) expressly accepted that the effect of house building in Sandbach would not affect the rate of development in Crewe, as they were different housing market areas.

vi) He argued that the SSCLG was wrong to endorse his Inspector's conclusion that the grant of permission would lead to other developers "jumping the gun." Citing Poundstretcher Ltd v Secretary of State for the Environment [1988] 3 PLR 69 and Rumsey v Secretary of State for the Environment Transport and the Regions [2000] EWHC Admin 399 [2001] 81 P and CR 32 he contended that the setting of a precedent can be a material consideration and thus justify refusal, but only if there is evidence before the decision maker of a grant of permission creating some identifiable risk of planning harm. He says that the Inspector, with whose conclusions the SSCLG had expressly said he agreed, did not consider that the effects of loss of a greenfield site, or loss of Grade 3a best and most versatile agricultural land, were sufficient to justify refusal of permission. He contended also that no evidence was put before the inquiry on this point, nor submission invited upon the issue.

vii) He took issue with the SSCLG's conclusion at paragraph 17 that development of the appeal site could delay the development of PDL sites because

a) The SSCLG drew on the Inspector's view that, as interpreted by the SSCLG " there can be no certainty that the development of this greenfield site may discourage the development of PDL sites in Sandbach" and noted the figures involved

b) He then stated that he had considered available evidence, including responses to a post inquiry reference exercise, and considered that development of PDL sites could be delayed, thereby losing regeneration and sustainability benefits

c) The Inspector had concluded that there was no clear evidence to substantiate this supposition, and the only material before him which was submitted after the inquiry was a representation from Fox which showed that it would not have the effect of delaying the development of those sites.

d) No party had argued this at the inquiry, and it was not a matter which should have been had regard to.

viii) In dealing with the issue of the loss of best and most versatile agricultural land, the SSCLG had misquoted and misunderstood it at paragraph 25, by asserting that the test was that there was " a need to avoid permanent loss of best and most versatile land unless absolutely unavoidable" whereas what the policy actually said (PPS 7 paragraph 28-9) was that the presence of such best and most versatile land (which includes Grade 3a, which was the grading of the appeal site) " should be taken into account alongside other sustainability considerations………when determining planning applications. Where significant development of agricultural land is unavoidable, local planning authorities should seek to use areas of poorer quality land (grades 3b, 4 and 5) in preference to that of a higher quality."

ix) He then referred to the Richborough decision letter. He contended that the unchallenged conclusions reached by the SSCLG in that decision (which, as was accepted by the SSCLG was actually written by the same person on his behalf) could not be reconciled with the conclusions in this decision. In particular, he referred to the conclusions of the SSCLG at paragraph 17 of the Richborough decision letter that greenfield development of a very similar number of houses would be consistent with the spatial objectives of the Local Plan, and to the absence in the decision letter in that case of any suggestion that approval was premature or otherwise affect the LDF process, or that there was any tension with the principles of "Localism." He also argued that the subsequent dealing with the Richborough issues by the SSCLG shows that he intends to stand by that inconsistent set of conclusions. He argued that, following North Wiltshire District Council v Secretary of State for the Environment (1992) 65 P & CR 137 the SSCLG was bound to give reasons why he was reaching a different conclusion. He drew attention to the fact that Fox had argued on a number of occasions that the two appeals should be determined together, because they had so many issues in common.

•

I THE CASE FOR THE SECRETARY OF STATE

26. Mr Warren, on behalf of the SSCLG, disputes that the SSCLG agreed with all the conclusions of the Inspector, despite what is said at paragraph 3, which he says should not be read at face value. The SSCLG only agreed with those conclusions of the Inspector where he said that he did so when dealing with the individual topics. He then set out his legal propositions

•i) The decision letter should be read as a whole, citing South Somerset DC v Secretary of State for the Environment [1990] 1 PLR 90

ii) Matters of planning judgement and weight are for the decision maker and not the Court : Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 (HL) and R(Newsmith) v Secretary of State for Environment, Transport & the Regions [2001] EWHC 74 (Admin)

iii) Whether a matter is a material consideration is for the decision maker (subject To Wednesbury review) unless there is a statutory direction on the point, citing R (Fewings) v Somerset County Council [1995] 1 WLR 1037

iv) Reasons may be shortly stated but must cover the principal controversial issues between the parties, citing S Bucks DC v Porter (no 2) [2004] 1 WLR 1953 (HL)

v) Like cases should be decided alike unless the decision maker gives a reasoned account of the different conclusion reached. There is no duty to give reasons in respect of unlike cases, for which he cited South Gloucs DC v SSCLG [2008] EWHC 2269.

•
27. Against that background he argued that

•i) The SSCLG did not endorse his Inspector's conclusion about the "localism agenda." If he had done, he would have been entitled to do so.

ii) The SSCLG's treatment of the test in paragraph 71 of PPS 3 was proper. He declined to treat the proposal favourably because of its conflict with the spatial vision for the area and with saved development plan policies on settlement boundaries and the restriction on development in the countryside.

iii) Paragraph 69 of PPS 3 states that it is proper to refuse planning permission for housing development in the face of a shortfall in the 5 year supply, if the proposal would conflict with wider policy objectives, or development plan policies, and one is not restricted to looking at policies on housing.

iv) The SSCLG was entitled to treat the damage done to the LDF consultation and approval process as sufficient to justify refusal. The stimulus which approval of the proposal would give to other developers was a matter capable of justifying refusal. Poundstretcher must be read in the light of Rumsey. There is no universal test for whether a planning permission would have a precedent effect. The SSCLG was entitled also to conclude that the grant of permission would send the wrong message to other developers, which could cause harm to the outcome of the spatial strategy.

v) The SSCLG, in concluding that the RSS favoured Crewe, had not misinterpreted the policy, nor had he misunderstood RSS.

vi) The SSCLG was entitled to find that the grant of permission could delay the development of PDL sites. It was a planning judgement open to him.

vii) The SSCLG had not misapplied national policy on the use of best and most versatile land. The word " absolutely" added nothing to the word " unavoidable" just as (Mr Warren's unusual choice of example) there is no difference between being " pregnant" and " absolutely pregnant."

viii) While he accepted that the Richborough Estates decision was material, he was entitled to give it no weight, so that the only legal scope for a challenge could be on a Wednesbury basis, which was not tenable here.

•

J LEGAL PRINCIPLES

28. Issues arise on the following

•i) The standard of reasoning required in a decision letter

ii) The legal principles informing the relevance, application and interpretation of policy

iii) The effect of arguments concerning precedent and prematurity

iv) The relevance of other material planning decisions.

•

The standard of reasoning required in a decision letter

29. A very useful guide appears in the judgement of Keene LJ in First Secretary of State & Anor v Sainsbury's Supermarkets Ltd [2007] EWCA Civ 1083 at paragraph 43, where he summarised the law on this topic, while explaining that he preferred the submissions in that case of Miss Nathalie Lieven for the Secretary of State

•" The judge referred to this aspect in the final sentence of his decisive paragraph, when he observed that

"at least the reasoning of the Secretary of State did not explain why those disadvantages [of Option A] had to be accepted." (paragraph 73)

Both appellants challenge that proposition. The Secretary of State relies upon the leading case of South Bucks District Council v. Porter (No. 2) [2004] 1 WLR 1953, where Lord Brown of Eaton–under–Heywood summarised the principles applicable to this well-worn topic. At paragraph 36 he said:

"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 any 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 a 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 be read in a straightforward 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 has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

Miss Lieven emphasises the propositions that the degree of particularity required depends entirely on the nature of the issues and that decision-letters are addressed to parties well aware of the issues involved and the arguments advanced. She also refers us to a passage from Clarke Homes Ltd v. Secretary of State for the Environment [1993] 66 P and C R 263, cited with approval in the South Bucks case. In Clarke, another case involving a reasons challenge, Sir Thomas Bingham, M.R., observed at page 271 – 272:

"I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication."

•

The legal principles informing the relevance, application and interpretation of policy

30. The interpretation of policy is a matter for the decision-maker; and, where the interpretation is one that the policy is reasonably capable of bearing, there is no basis for intervention by the Court (R v Derbyshire CC ex parte Woods [1997] JPL 958). However a failure, if any, by the Secretary of State to understand the guidance or policy or to have proper regard to it so as possibly to have affected the outcome is a ground for quashing any planning decision turning on it; see Woolf J in Gransden & Co Ltd v Environment Secretary [(1987] 54 P & CR 86 cited in Ashwell Property Group Plc & Anor v Cambridge City Council [2008] EWCA Civ 1151 per Sir Robin Auld. I would refer also to R (on the application of Springhall) v London Borough of Richmond Upon Thames [2006] EWCA Civ 189. At paragraph 7 Auld LJ said this:

"In any particular case involving the interplay of a policy indicated in a development plan and other material considerations, there may be more than one acceptable interpretation in planning terms of a policy indicated by the plan, and more than one 'correct' application of it when set against the other considerations. A planning decision maker's approach to policy will only be interfered with by the court if it goes beyond the range of reasonable meanings that can be given to the language used: see R v Derbyshire County Council, ex parte Woods [1997] JPL 958, CA, per Brooke LJ at page 967 968. If there is a dispute about the meaning of the words included in a policy document which a planning authority is bound to take into account, it is of course for the court to determine as a matter of law what the words are capable of meaning. If the decision maker attaches a meaning to the words they are not properly capable of bearing, then it will have made an error of law, and it will have failed properly to understand the policy (see Horsham DC v Secretary of State for the Environment [1993] 1 PLR 81, per Nolan LJ at 88). If there is room for dispute about the breadth of the meaning the words may properly bear, then there may in particular cases be material considerations of law which will deprive a word of one of its possible shades of meaning in that case as a matter of law."

31. Lastly, the Secretary of State wishes to depart from his own policy, he must give reasons for doing so: I would refer to this well-known passage in the judgement of Nolan LJ in Horsham District Council v Secretary of State for the Environment and Margram Plc [1993] 1 PLR 81

"I would refer in this connection to the judgment of Woolf J., as he then was, in E. C. Gransden & Co. Ltd. v. Secretary of State for the Environment 54 P & CR 86 . He summarised the position of a decision-making body in the form of five statements of principle. I need only quote the last three :

Thirdly, the fact that a body has to have regard to the policy does not mean that it needs necessarily to follow the policy. However if it is going to depart from the policy it has to give clear reasons for not doing so in order that the recipient of its decision will know why the decision is being made as an exception to the policy and the grounds upon which the decision is taken."

32. It follows that in this matter it will be necessary to identify the policies in issue, any issues on their meaning, whether the SSCLG departed from any of them, and if he did so, whether he gave reasons for doing so.

The effect of arguments concerning precedent and prematurity

33. In Poundstretcher Ltd v Secretary of State for the Environment [1988] 3 PLR 69 Mr David Widdicombe QC, sitting as a deputy High Court Judge, accepted a submission that, while a fear or concern that a precedent would be set, fear or generalised concern is not enough to justify such a reason for refusal, in the absence of one form or another for the reliance on precedent. Some concerns about the breadth of that approach were expressed by Mr Duncan Ouseley QC (as he then was) sitting as a deputy High Court Judge in Rumsey v Secretary Of State For Environment Transport & Regions & Anor [2000] EWHC Admin 399 [2001] 81 P & CR 32.

"Poundstretcher cannot be seen as providing some precise legal test as to the nature of the material which an Inspector must have before him when reaching a judgment on a precedent issue. The recognition of the inadequacy of mere fear or generalised concern is no more than saying that an Inspector must have some material on which to base his view, and the nature of what is required will vary from case to case. But just using Poundstretcher as a guide, the Inspector here appears to have had at least as much material as in that case went sufficiently beyond a mere fear or generalised concern. Moreover, in Poundstretcher, it was rightly recognised that the planning judgment as to harm by precedent can be made in circumstances where the facts speak for themselves. The Inspector here identified his concern as being with the relatively small properties in the area; his conclusions as to precedent and cumulative effect do not require greater exposition than he provided as to the material upon which they were based. The circumstances which he has identified can be treated as speaking for themselves.


I should add that I do not accept an earlier submission which Mr Pereira made, but then drew back from, to the effect that if no harm were found in any individual case, then no harmful effect could follow from subsequent decisions on all fours with that one. I consider that it is open to a planning decision-maker to reach a contrary conclusion: one development is harmless, but a second or more, each individually harmless, would lead to a harmful accumulation; thus the first might be refused, because decisions could not be taken in isolation, when in reality one decision led to another."

34. I prefer the Rumsey approach, which is subtler, and which accepts that a decision maker can, in appropriate cases, address what the effect of a decision could be on subsequent decision making, and on the cumulative consequences of those subsequent decisions.
35. As to the issue of prematurity, that is wholly concerned with whether national policy did have the effect contended for by Mr Tucker, and if so, whether the SSCLG gave reasons for departing from it. As I shall come to, I am not persuaded that the arguments about precedent are anything more than another way of debating the issues about prematurity. That in turn depends on arguments about the effect of the policy, and, if there was departure, whether reasons were given for that departure.

The relevance of other material planning decisions

36. Guidance on how they are to be dealt with is given by Mann LJ in North Wiltshire District Council v Secretary of State for the Environment (1992) 65 P & CR 137 at 145 (followed by the Court of Appeal in Dunster Properties Ltd v The First Secretary of State & Anor [2007] EWCA Civ 236):

"One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.

To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in a previous case? The areas for possible agreement or disagreement cannot be defined but they would include an interpretation of policies aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weigh the previous decision and give his reasons for departure from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate."

37. Mr Warren submitted that a decision maker was entitled to regard another decision as material, but then give it no weight. In my judgement that is to misunderstand the purpose of the passages in North Wiltshire cited above. The rationale of the principle is that, if a decision is to be reached which is not ad idem with the approach followed in another, then the importance of achieving consistency and of the maintenance of confidence in the development control system require that reasons are given for departures from conclusions reached in another decision. I would refer to this passage from Dunster at paragraph 23 per Lloyd LJ (My italics)

Mr Mead's last sentence in paragraph 8 suggests that he has not grasped the intellectual nettle of the disagreement, which is what is needed if he is to have had proper regard to the previous decision. Either he did not have a proper regard to it, in which case he has failed to fulfil the duty to do so, or he has done so but has not explained his reasons, in which case he has not discharged the obligation to give his reasons."

K DISCUSSION

(1) The effect of the Richborough Decision Letter

38. I am going to start my discussion with the ground argued by Fox about the effect of the Richborough appeal.
39. This area (Cheshire East) consisted of a number of now merged District Council areas, each with their own second tier Development Plan policies. Further, CEC was faced with a substantial housing land supply shortfall, which meant that there would inevitably be potential pressure placed on developed sites to make up the shortfall. However it was too early in the LDF process for any candidate sites to have emerged, let alone reach the stage at which some weight could be applied to their allocation. At the same time, the process of development control could not come to a halt, and it is quite unsurprising to see that two large schemes, both proposed on undeveloped land, should have emerged. The only way in which those two applications could be assessed is through development control. They are not necessarily alternatives; it is quite possible that both will be required. But even so, this is one of those situations where it was especially important that the Local Planning Authority, and the SSCLG as appellate authority, took care to consider the two applications against a coherent and consistent approach.
40. The two appeals raised very similar issues

•i) Both were large undeveloped sites on the edge of Sandbach.

ii) The LDF process was under way in both cases.

iii) Whether there were objections which, given the admitted shortfall in the housing land supply, outweighed the effect of paragraph 71 of PPS3

iv) Whether development of the site in question caused harm to the final objective in paragraph 69 of PPS3

"Ensuring the proposed development is in line with planning for housing objectives, reflecting the need and demand for housing in, and the spatial vision for, the area and does not undermine wider policy objectives e.g. addressing housing market renewal issues."

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41. It was within the SSCLG's discretion not to determine the two appeals together, although one might have thought that was not the more prudent course. The risks of not doing so include those of the decision maker following a different, and contradictory, approach in two decisions even though they raise very similar issues. But what he could not do, unless he gave clear reasons for doing so, was to determine one in a way that was contradictory to the other, as is clear from North Wiltshire District Council v Secretary of State for the Environment (1992) 65 P & CR 137 at 145. The facts here are that

•i) in the Richborough case at paragraph 17 of the Decision Letter, the Secretary of State concluded that the development would not conflict with the spatial policy objectives for the area, whereas in the Fox case he concluded that it could do so (para 15). No reasons are given for the stark difference in approach.

ii) The Richborough decision is silent on any adverse effect on the LDF process. That may well be because of the unfortunate failure by the SSCLG to look at the Richborough site in the context of housing provision in Cheshire East rather than just in Sandbach. But given the importance given to it by the Secretary of State in his decision, that is a striking omission, without any reasons being given. Conversely, given what he decided there, it is a striking inclusion in the Fox decision.

iii) It avoids any reference to the principle of "localism" whatever that may mean(considered below). However had that last omission stood on its own, I would not have regarded that as justifying the quashing of the decision letter.

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42. At the time the Fox decision was issued, it is of course true that the Richborough challenge had been issued. However I do not accept the argument of Mr Warren that therefore the SSCLG could avoid dealing with the obvious conflicts by electing to treat it as having no weight. The SSCLG had not at that point submitted to judgement, so the decision still stood as a matter of law. In any event the grounds of challenge raised by Richborough did not go to any of the areas where the two decision letters were so far apart. The fact that since then the SSCLG has resisted receiving any representations on those areas confirms me in that approach.
43. Mr Warren's argument, which is essentially that the decision maker is entitled to treat the other decision letter as material, but then avoid giving reasons for not following its approach by regarding it as of no weight, is in conflict with the principles set out in Wiltshire. In truth, what happened here is that the SSCLG avoided addressing the issue by arguing that the Richborough appeal decision carried no weight. I reject that approach, and consider that it reveals a major error of law. In the language of Lloyd LJ in Dunster at paragraph 23 (my italics)

"In my judgment, notwithstanding Miss Olley's submission to the contrary, Mr Mead did not adequately perform his obligation to give reasons for this decision in respect of his refusal to follow the basis of the earlier appeal decision which was a material consideration. In this respect it seems to me that by declining to comment, other than to refer to his own reasons already expressed, Mr Mead appears not to have faced up to his duty to have regard to the previous decision so far as it related to the point of principle as a material consideration. An omission to deal with the conflicting decision, as in the North Wiltshire case, might have been sufficient in itself. But Mr Mead's last sentence in paragraph 8 suggests that he has not grasped the intellectual nettle of the disagreement, which is what is needed if he is to have had proper regard to the previous decision. Either he did not have a proper regard to it, in which case he has failed to fulfil the duty to do so, or he has done so but has not explained his reasons, in which case he has not discharged the obligation to give his reasons."

44. It is therefore my view that the Decision Letter must be quashed.
45. I cannot direct the SSCLG on how he should approach redetermination. It is appropriate to point out however that if he has two appeals relating to similar proposals in the same town before him, he would run a much reduced risk of problems like this one occurring again if he decides to determine the two cases together. That is of course a matter upon which he must consider the views of the parties before reaching a final view.
46. I shall now turn to the other grounds. I can take them fairly swiftly given my overall conclusion that the decision letter must be quashed.

(2) Prematurity and Precedent

47. In PPS 3 at paragraph 72, the SSCLG states that

"Local Planning Authorities should not refuse applications solely on the grounds of prematurity."

That is not the only part of national policy on this topic. The test in paragraph 17 of "The Planning System: General Principles" permits a refusal of permission where a development plan is in the course of preparation,

"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."

48. Paragraph 18 discourages refusals on the grounds of prematurity when such circumstances do not arise. I regard the effect of those two paragraphs when read together, albeit in rather more expanded form, as no different from the policy at paragraph 72 of PPS 3

"Local Planning Authorities should not refuse applications solely on the grounds of prematurity."

While, somewhat surprisingly, it is true that those passages seem to receive no explicit consideration by either the Inspector or the Secretary of State, the fact is that the SSCLG expressly considered the effect of a grant of permission of a proposal of this size on decisions that would be made in the context of the LDF process, by reasons of its "sending the wrong message to other developers" (paragraph 16) and by its pre-empting decisions on revised settlement boundaries before current uncertainties with regard to population growth and distribution can be settled in a statutory planning context (paragraph 25). Such a conclusion, which he was entitled to reach on the evidence before him, involves no departure from the policy. It also does not involve a refusal solely on the grounds of prematurity, and therefore involves no departure from paragraph 72 of PPS 3.

49. In my judgement, the Inspector's reference to " jumping the gun" (paragraph 92 and 105), which Mr Tucker submits was followed through in paragraph 16 of the Decision Letter is in truth no more than another way of saying that the making of a decision at this stage would pre-empt the decisions referred to above. It takes Mr Tucker's argument no further. In any event, I consider that in a case of this kind, the Secretary of State is perfectly entitled to hold that a grant of permission to develop a greenfield site may make it more difficult to resist applications relating to others, provided that the grant of some or all such permissions could be harmful. In my judgement, he has given reasons why he regarded that as harmful. I therefore reject these grounds argued by Mr Tucker.
50. It will of course be for the SSCLG to reflect on redetermination whether these reasons carry weight, in the light of their complete and striking absence from the Richborough decision.

(3) Localism

51. This is a concept which caught the interest of the Inspector (see her paragraph 106), although it is noteworthy that her report contains nothing which explains what it is, nor how it is alleged that it the proposal would breach it. Mr Tucker describes it as an "inchoate and unarticulated" policy. Mr Warren did not seek to direct me to any statement of policy which could explain its relevance to the issues before the SSCLG. His case was instead that, notwithstanding the statement in paragraph 3 of the Decision Letter " For the reasons given below, the Secretary of State agrees with the Inspector's conclusion and her recommendations" the SSCLG did not in fact endorse the Inspector's paragraph 106. It is worth noting that the Inspector there expressed her views on her overall balance when weighing harm against benefit.
52. I can well understand why it is that Mr Tucker draws my attention to this matter. The Inspector had based a very important part of her conclusions on a principle which at this stage has nothing about it against which one can measure a proposal. The Decision Letter is not one which was written with as much care as it should have been, but in my judgement, Mr Warren's argument is correct. When one looks at the decision letter of the SSCLG as a whole, it plays no part in it, and none in particular in his overall conclusions at paragraph 25.

(4) Interpretation and application of PPS 3

53. The first issue is to determine how one reads paragraphs 68-72 of PPS 3. The first argument which divided Mr Tucker and Mr Warren was whether the fifth bullet point in paragraph 69 and paragraph 70 permit one to look at wider questions than housing polices and objectives. In my judgement one starts by asking under paragraph 71 whether there is a shortfall in the housing land supply. If one exists, then one "considers favourably planning applications for housing, having regard to the policies in this PPS including the considerations in paragraph 69." That cannot mean that one is prevented from looking at anything unless it is found in PPS 3, but only that it directs ones attention to the latter. I have no doubt whatever that, whether one is looking generally, or within PPS 3, when weighing up whether there are objections to the release of a site to meet an identified shortfall, any policy or material consideration relevant to the principle of its development can properly be taken into account, whether a "housing" policy as such or not. The provisions of the development plan are also relevant, both by virtue of statute (section 38(6) Planning and Compulsory Purchase Act 2004) but also by virtue of paragraph 68.
54. Mr Tucker complains that the SSCLG interpreted the policy in paragraph 13 as

"Therefore as required by paragraph 71 of PPS3, housing applications should therefore be considered favourably so long as there is no other objection ."

I agree with Mr Tucker that that is a poorly phrased summary, and in its desire to be succinct, does little justice to the meaning of paragraphs 68-72 of PPS 3, and paragraph 71 in particular. However what matters is whether he actually applied so simplistic a test when carrying out his assessment.

55. One then looks at the way in which the SSCLG actually addressed the five tests in paragraph 69. He accepted the Inspector's assessment (paragraph 14). The Inspector concluded that the first four tests were met, but held that it was not possible to say at that time whether the development would reflect the spatial vision for the area, nor whether it would undermine the wider policy objectives for housing (paragraph 93), which she said " tempered accordingly" the encouragement in paragraph 71 of PPS 3. She also said at paragraph 105 that the proposed development could prejudice the Council's emerging spatial vision for the area.
56. The SSCLG endorsed her conclusions on that issue (paragraph 14 last sentence) and accepted her argument about "tempering" (paragraph 16). He also, in his overall conclusions at paragraph 25, set the policy encouragement in PPS 3 generated by the housing land supply shortfall against conflict with saved development plan policies relating to settlement boundaries and the restriction of development in the countryside, and the protection of best and most versatile agricultural land, and concluded that they tipped the balance against the grant of planning permission. He also referred to the pre-empting of decisions on settlement boundaries, and the risk of prejudice to the development of PDL sites. Subject to arguments about the details of two of the countervailing factors (the policy on agricultural land, and on the evidence about the effect on PDL sites) there was nothing which conflicted with PPS 3 in bringing these matters into account in the way he did. He did not apply the misleadingly simplistic test as he had summarised it at paragraph 13, but actually applied the right test.
57. It follows that despite the attractive way in which Mr Tucker argued this ground, I do not consider that it has merit.

(5) Approach to RSS

58. Mr Tucker's argument rest fundamentally on his complaint that the Inspector and SSCLG had held that the RSS favours Crewe as a location for development as against Sandbach. In my view this was based on a misconception. Mr Tucker is right when he says that there is no policy in RSS which seeks to direct development from Sandbach to Crewe, and he points out also that there is nothing in either the Inspector's Report or the Decision letter to show that this development would affect the rate of development in Crewe. He points out also, by reference to the closing submissions of counsel for CEC at the inquiry, that it was common ground that the housing markets were not related, and that the rate of development in one would not affect the rate of development in the other.
59. However if one looks at the policies, RSS identifies Crewe as a third priority centre (Policy RDF 1). In a lower tier comes Sandbach, which is a "Key Service Centre" (RDF 2). So although they lie in different policy areas (Crewe in the South Cheshire area of MRC 4 and Sandbach in the Manchester City Region of MRC 3) there can be no doubt that, as a location for development, Crewe is to be preferred to Sandbach if there is a choice. When the SSCLG said that the RSS suggested that " Crewe is the priority for large scale housing growth " (Para 15) he was right. I can find no error of law in the SSCLG's treatment of the policy status of Sandbach.
60. Of course one of the reasons why the Richborough decision is important is that it looks for its spatial context to Sandbach, and not the wider area.

(6) Impact on the wider housing market

61. Mr Tucker argues that there was no evidence to support the Inspector's and SSCLG's conclusions at paragraphs 94-5 and 17 respectively that the effect of the proposal could be to delay the development of PDL sites, and contends that such conclusions were not open to them on the evidence. I agree with him that the evidence was not especially persuasive, but both had evidence before them on which it would have been possible to conclude that development of this site would create some risk of a slowing effect on the development of the others, and CEC had argued that there could be an effect. It was a matter for the planning judgement of the Inspector or SSCLG on the factual material put before them. I accept also that the evidence did not permit one to conclude that it would probably happen. But I do not accept Mr Tucker's description of this to me as a "flight of fancy" to which no regard should have been had. In the view of the SSCLG it was a risk which was not so insignificant that it could be discounted. If that was his view, he committed no error of law in this respect.

(7) The test used for loss of agricultural land

62. This depends on the argument that the SSCLG misquoted the policy at his paragraph 25. In my judgement the test as set out in paragraph 25 of the decision letter is wrongly stated, and differs from that in PPS 7 at paragraph 28. It does not fall within the range of reasonable interpretations of the policy. If he had applied the test in PPS 7 properly he would have asked whether the shortfall he had found required the taking of agricultural land. If it did so, then he had to consider whether there was other available land which was not best and most versatile. He has not done that.
63. In my judgement he has misunderstood his own policy, and has failed to apply it. He has given no reasons for departing from it. It follows that I regard this ground as made out. Given the existence of the other reasons for refusal by the SSCLG, had it stood on its own, I would not have quashed the decision on the strength of it.

(8) Overall conclusions

64. It follows from the above that I consider that of two of the Claimant's grounds are made out, and the decision letter must be quashed.
65. It is a matter for the SSCLG whether he now seeks to determine the two appeals (Fox and Richborough) together. The sorry history of the two appeals, with both decisions now being quashed, might suggest to him that a wiser course would be to deal with matters together. It is also ironic, albeit not actually unlawful, that when one case involves a decision letter which rests so heavily on the need to avoid taking individual decisions because of the implications on other proposals, and of the combination of it with other proposals, that the SSCLG had deprived himself of the chance of looking at both proposals together.
66. Nothing in this judgement is to be read a indicating any view on the merits of either proposal, nor on the planning merits of those conclusions upheld or not in this judgement.

70. I circulated this judgment in draft to Counsel, and invited submissions in writing on

(a) The terms of the Order

(b) Applications for costs.

(c) Permission to appeal

I have received such submissions, for which I am grateful.

Order

67. I make the following order

•i) This claim is allowed and the Decision Letter of the First Defendant dated the 29 September 2011 is quashed

ii) The First Defendant do pay the costs of the Claimant in respect of this claim as agreed in the sum of £22,000.00

•

Application for permission to appeal

68. The Defendant Secretary of State seeks permission to appeal on three grounds

•i) The fact that the Richborough Decision Letter was under challenge distinguishes this case from the line of cases like Dunster Properties, in which the legality of the previous decisions was unchallenged. Where the relevant previous decision may or may not be in existence in the near future, due to a High Court determination, it was not a breach of the principle of consistency for the Secretary of State to give no weight to it. Therefore the Tesco principle that weight is for the Secretary of State should have been applied.

ii) The general question of the relationship between the principle of consistency, and the principle that weight is for the decision maker is a matter of importance which would benefit from the consideration of the Court of Appeal.

iii) Albeit not a matter on which the learned judge considered that he would have quashed the permission, the Secretary of State's application of policy in PPS7 regarding best and most versatile agricultural land was within the bounds of the test in Cranage Parish Council v First Secretary of State [2004] EWHC 2949 Admin

•
69. I have considered those submissions. My conclusions are

•i) The ratio of both N Wiltshire and Dunster is not only concerned with materiality in the classic sense, but also with the importance of consistency in decision making. If a decision on a sufficiently similar case reaches different conclusions on relevant issues, reasons must be given for the differences. Dunster was decided long after Tesco. If the Tesco point had force in this context, one would have expected to find it argued before the Court of Appeal by the SSCLG's predecessor in Dunster, which the judgements suggest it was not. The SSCLG failed to follows the straightforward test set out by Lloyd LJ in Dunster at paragraph 23. I note also that in 2007, I was asked by the Secretary of State in Vicarage Gate Ltd v First Secretary of State [2007] EWHC 768 (Admin) to grant permission on appeal on the basis that North Wiltshire required reconsideration, a few months after Dunster was decided. As far as I am aware, my conclusion that North Wiltshire did not require reconsideration by the Court of Appeal in the light of its endorsement in Dunster was not challenged by the Secretary of State by means of an application to the Court of Appeal.

ii) The decision letter in question had not been quashed at the time the decision letter was written. Long standing principle (see for example Main -v- Swansea City Council [1985] 49 P & CR 26) holds that a decision remains valid unless and until it is quashed. Its materiality for North Wiltshire/Dunster purposes cannot depend on the simple fact that it has been challenged. The nature of the challenge could be significant or insignificant in the context of the decision letter under consideration. Here, the grounds for quashing the Richborough had nothing to do with the areas so plainly inconsistent with the Fox decision letter.

iii) The principle referred to as flowing from the first instance decision Cranage is no different from the principles at paragraph 35 of this judgement. The interpretation given here by the SSCLG lay quite outside the wording of PPS7. In any event, I would not have quashed the decision letter on this ground alone.

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70. I therefore consider that there is no reasonable prospect of a successful appeal against my judgement, and permission to appeal is refused.

Note 1   PPS 3 paragraph 54    [Back]

Note 2   The highlighting in bold font appears in the original in both paragraphs    [Back]

Note 3   All references in square brackets are to other paragraphs of her report, where she was setting out the cases put to her    [Back]