Case No: CO/6641/2011
Neutral Citation Number:  [2012] EWHC 634 (Admin)

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

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 16 March 2012 

Before :

THE HONOURABLE MR JUSTICE EADY
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Between :

	DARTFORD BOROUGH COUNCIL	Claimant	
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	SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
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SKILLCROWN HOMES LIMITED  	
Defendant

Interested Party	

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Caroline Bolton (instructed by Dartford Borough Council) for the Claimant
Cain Ormondroyd (instructed by Treasury Solicitor) for the Defendant

Hearing date: 29 February 2012
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Judgment
Mr Justice Eady : 
1.	Dartford Borough Council (“the Claimant”) seeks to challenge a decision of the Secretary of State for Communities and Local Government (“the Secretary of State”) contained in a notice dated 1 June 2011.  The effect of it was to grant outline planning permission to Skillcrown Homes Ltd for the demolition of two bungalows at Nos 64 and 66 Joydens Wood Road in Dartford and for the development of eight detached houses together with a new access road.  (There were to be seven 4-bedroom and one 3-bedroom homes.)  Its application had been dated 29 September 2010.
2.	The present application is made in accordance with the provisions of s.288 of the Town and Country Planning Act 1990 which, so far as relevant, is in these terms:
“(1)	If any person – 
(b)	is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action, on the grounds – 
(i)	that the action is not within the powers of the Act, or
(ii)	that any of the relevant requirements have not been complied with in relation to that action,
he may make an application to the High Court under this section. …
(2)	Without prejudice to subsection (1), if the authority directly concerned with any order to which this section applies, or with any action on the part of the Secretary of State to which this section applies, wish (sic) to question the validity of that order or action on any of the grounds mentioned in subsection (1), the authority may make an application to the High Court under this section.”
3.	The Secretary of State had appointed a Planning Inspector to hear an appeal by Skillcrown Homes Ltd against the decision of the Claimant to refuse planning permission, its reasons having been set out in a decision notice dated 7 December 2010.  This notice had identified two grounds for refusal, of which the first was expressed as follows:
“The proposed development of previously undeveloped garden land, including the demolition of existing housing and the creation of a new access road, would result in an undesirable form of development and an unacceptable erosion of the character of this part of Joydens Wood, diminishing the visual qualities of the street scene, contrary to PPS3 (Housing), Policies B1, H7, H8 and H10 of the adopted Local Plan 1995 and Policies DD11, H4 and H8 of the Dartford Local Plan Review Second Deposit Draft 2004.”
The second ground was concerned with whether the proposed layout reached the appropriate spatial standards and with matters of scale and proportion.  It is not directly relevant to the present application.
4.	These events took place against the background of a letter from the Department’s Chief Planner dated 15 June 2010 which had been addressed to all planning authorities in England:
“NEW POWERS FOR LOCAL AUTHORITIES TO STOP ‘GARDEN GRABBING’
On 9th June 2010 Government implemented the commitment made in the Coalition Agreement to decentralise the planning system by giving Local Authorities the opportunity to prevent overdevelopment of neighbourhoods and ‘garden grabbing’.
I am writing to confirm that the Government has amended Planning Policy Statement 3: Housing (PPS3) with the following changes:
•	private residential gardens are now excluded from the definition of previously developed land in Annex B
•	the national indicative minimum density of 30 dwellings per hectare is deleted from paragraph 47
Together these changes emphasise that it is for local authorities and communities to take the decisions that are best for them, and decide for themselves the best locations and types of development in their areas.
The amended policy document sets out the Secretary of State’s policy on previously developed land and housing density.  Local Planning Authorities and the Planning Inspectorate are expected to have regard to this new policy position in preparing development plans and, where relevant, to take it into account as a material consideration when determining planning applications.  I am copying this letter to the Planning Inspectorate.
STEVE QUARTERMAIN
Chief Planner”
5.	In the June 2010 edition of PPS3, paragraph 68 contains the following statement:
“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.”
6.	The Claimant’s decision of 7 December 2010 was appealed by Skillcrown Homes Ltd, pursuant to s.78 of the 1990 Act, and on 19 April 2011 a hearing took place before the Planning Inspector appointed by the Secretary of State.  The Inspector identified “the main issue” he had to determine, at paragraph 4 of his decision, as being “… the effect of the development on the character and appearance of the area in the context of the amendments to the status of garden land in [PPS3]”. 
7.	At that stage, an argument was advanced on behalf of Skillcrown that the proposed development of the site would contribute towards the Claimant’s achieving its housing supply target and that it could be treated as a “windfall site”.  It was submitted on behalf of the Claimant, however, that its Strategic Housing Land Availability Assessment had identified specific sites, as recently as July 2010, which could deliver its housing supply target to the year 2026 without the need for any windfall sites to be developed.  The evidence of Mr Nicholls, one of the Claimant’s senior planning officers, shows that it was accepted by both parties that development of the site was not required to meet the housing supply targets.
8.	One of the policies from the Local Planning Review to which the Claimant had originally attached particular significance, and which was again taken into account at the hearing before the Inspector, was Policy H4.  This addressed inter alia the matter of windfall sites and contained the following provisions:
“Residential development on previously unidentified sites within both built-up areas and villages confines will only be permitted if the following criteria are met:
1.	The site is on previously-developed land and in a location that would facilitate sustainable development … ”
It is not disputed that the appeal site was (i) “previously unidentified” and (ii) not “on previously-developed land”.
9.	The Claimant submits that its Policy H4 is consistent with PPS3 (to which reference was made in the Chief Planner’s letter of 15 June 2010, from which I have quoted above).  In particular, in order to demonstrate this proposition, reference was made to the following documents:
i)	The footnote to paragraph 59 of PPS3 (2011 edn):
“Windfall sites are those which have not been specifically identified as available in the local plan process.  They comprise previously-developed sites that have unexpectedly become available.”
ii)	The footnote to paragraph 59 of the previous edition of PPS3, which applied at the time of the decision in December 2010 and was expressed in the same terms.
iii)	The Chief Planner’s letter of 15 June 2010, confirming that the Government had amended PPS3 to exclude residential gardens from the definition of “previously-developed land” in Annex B.
10.	The Inspector decided to grant outline planning permission to Skillcrown Homes Ltd and the Claimant now seeks to challenge the decision on two grounds, which may be summarised as follows.  First, it is said “ … that the decision letter concludes at paragraphs 9, 10 and 12 that this was a suitable site for a windfall site and accordingly, the Inspector granted planning permission”.  The criticism is that the land had not been previously developed and, therefore, that it was not capable of being considered a windfall site.  From this, the Claimant invites the conclusions that:
i)	the Inspector erred in reaching his decision by failing to take into account a relevant consideration, namely, that footnote 31 to paragraph 59 of PPS3 restricts windfall sites to those which have been previously developed and he ought to have concluded that the site of the proposed development was thus not capable of being a windfall site;
ii)	the Inspector took into account an irrelevant consideration in considering the site to be a windfall site when it was plain that the site was not capable of being a windfall site pursuant to footnote 31 of paragraph 59 of PPS3;
iii)	the Inspector’s conclusion that the site was an appropriate site for a windfall site was irrational and a decision that no reasonable decision maker could have come to, considering the definition of windfall sites at footnote 31 to paragraph 59 of PPS3.
11.	The second ground is that the Inspector erred in failing to give any, or any sufficient, weight to Local Plan Review Policy H4 (from which I have quoted above).  It is said that his explanation for this at paragraph 9 of his decision, was flawed:
“ … Policies from the Local Plan Review, dated 2004, include H4, which, amongst other matters, require that windfall sites should only occur on previously developed land.  However, the plan has not been adopted, which diminishes the weight that may be applied to it, and it is likely that the changes to PPS3 would raise issues which were not envisaged at the time of its preparation … ”
It is suggested that the Inspector’s decision to apply little or no weight to Policy H4 was irrational, since it was in accordance with the changes made to PPS3 and explained in the Chief Planner’s letter of 15 June 2010.  On this basis, it is again submitted that:
i)	the Inspector failed to take into account a relevant consideration, namely, footnote 31 to paragraph 59 of PPS3, which makes it plain that this site could never be a windfall site (not being previously developed land) so that Policy H4, being in accordance with the requirements of PPS3, was a material consideration which ought not to have been diminished by reference to the changes to PPS3;
ii)	the other requirements of Policy H4 were not in conflict with the amendments to PPS3 and, accordingly, it was irrational of the Inspector to diminish the weight to be attached to Policy H4 as though there were a conflict between it and PPS3.
12.	It is recorded in the evidence of Mr Robinson, Skillcrown’s planning expert, that not only was there no discussion before the Inspector of Footnote 31, but it was not even raised on the Claimant’s behalf.  Mr Nicholls confirms this.  This may be why the Inspector made no reference to it and failed to take it into account.  In supporting the Claimant’s grounds, Ms Bolton attaches particular significance to paragraph 12 of the Inspector’s decision, which contains the following passage:
“The Council advised that the land is not needed in order to meet housing supply targets, and it was emphasised that it does not form a priority location for development in terms of PPS3.  However, it falls within an existing urban area and, despite some claims to the contrary, there was not a compelling case to show that it is an unsustainable location.  In addition, the existing gardens are large in relation to the size of the dwellings they serve, and they do not appear to be intensively used.  The site has previously had planning permission for 13 developed dwellings, albeit under different planning policies in 1998.  Overall, the land appears an appropriate location as a windfall site to contribute to the supply in the area.”
13.	For the Secretary of State, Mr Ormondroyd has argued the Claimant’s challenge is groundless and is based on a misinterpretation of the Inspector’s reasons.  He dismisses the last sentence of paragraph 12 as incidental and no more than a passing reference:  it was not integral to the Inspector’s reason(s) for granting planning permission.  It was merely mentioned among “other matters” and had not been expressly included in the “main issue”.  Furthermore, the term “windfall site” should not be treated as a term of art or construed solely by reference to the description contained in footnote 31:  that is to say, it should not be regarded as an exclusive definition.  
14.	Mr Ormondroyd submitted that it simply did not matter whether the site was described as a windfall site or not.  If, however, the Inspector did not regard his characterisation of the land as “an appropriate location as a windfall site” as being at least part of his reasoning in granting planning permission, I find it difficult to understand why it is mentioned (apparently as part of an “overall” conclusion).  Indeed, it will be recalled that he was dealing with an argument on windfall sites from Skillcrown which appeared to be central to its case:  it could thus hardly be said to be incidental.  
15.	Secondly, if this was not being put forward as the reason for his conclusion, it is not immediately apparent what that reason was.  It is true that he asserts that there was “not a compelling case to show that it is an unsustainable location”, but that in itself could hardly be the reason.  It is at least clear that there is no presumption in favour of development.  This is common ground.  Thus, the absence of a compelling case on unsustainable development would not provide a reason for granting permission or, more specifically, for departing from the Policy H4.  This requires not only sustainability but also that the land has been previously developed.  
16.	Thirdly, since the Inspector was in paragraph 12 directly addressing the terms of PPS3, the natural interpretation of the phrase “windfall site” in that context would be the one it contains, as expressly set out in footnote 31.  The Inspector failed to take it into account, as a relevant factor, and in any event there is no indication of any other definition of the phrase that he had adopted instead.
17.	Ms Bolton further submits that, if the last sentence of paragraph 12 does contain a reason for the Inspector’s decision, it is plainly flawed, since the site had not been “previously developed” and would thus be incapable of constituting a windfall site.
18.	Moreover, she argues, although the Inspector was entitled to attach little or no weight to Policy H4, it behoved him at least to provide a cogent reason for doing so.  One could imagine circumstances, for example, in which it became necessary to depart from such a policy, in order to comply with a housing target or some other overriding policy objective, and to grant permission to utilise land hitherto undeveloped.  No such explanation has been given here.  Indeed, the evidence makes clear that targets were achievable without any such departure.
19.	Accordingly, it is submitted that no reasonable decision maker could have come to the conclusion reached by the inspector on these facts.
20.	My attention was drawn to the decision in Edinburgh City Council v Secretary of State for Scotland [1997] 1 WLR 1447, 1459-60, where it was emphasised that the structure of and approach to a decision were matters largely for the judgment of the particular decision-maker.  Mr Ormondroyd also submitted that the court should look broadly at the Inspector’s findings and reasoning and not focus on the minutiae.  In this context, he cited ELS Wholesale (Wolverhampton) Ltd v Secretary of State for the Evironment (1987) 56 P & CR 69.  It is right that I should address the reasoning in this case with those broad principles in mind.
21.	The first reason given by the Inspector for departing from Policy H4 was that it had not been adopted (albeit promulgated in 2004).  So far as it goes, that may be a good reason for attaching less (or even no) weight to it.  But the matter does not rest there.  The Inspector gives the following apparently linked reason in paragraph 9:
“ … and it is likely that the changes to PPS3 would raise issues which were not envisaged at the time of its preparation.”
That may be a little opaque, but it was common ground between counsel that “the changes to PPS3” referred to must be those already identified (on “garden grabbing”).  Since gardens were, from June 2010, to be excluded from the category of “previously developed” land, it only seems realistic to suppose that any responsive changes to H4 would be, if anything, more likely to discourage development on this site.  But it is unnecessary and inappropriate for me to speculate.  
22.	It is, to say the least, difficult to imagine what potential inconsistency the Inspector had in mind as between Policy H4 on the one hand and PPS3, as amended, on the other.  He did not explain and his reasons thus remain obscure.  That is despite the express reference in his “main issue” to the context of the amendments to the status of garden land.  It is not at all clear how this context was factored into his reasoning process.  He took it into account, apparently concluding, at paragraph 7, that it made no difference, but offered no explanation.  He did state, in the same paragraph, that the effect of removal of (or “grabbing”) the existing gardens would not in his view be out of keeping with the area, but that is not a reason in itself to depart from Policy H4.
23.	It was not clear to me, either, why it should be thought a material factor in the context of “garden grabbing” that the gardens in question were “large in relation to the size of the dwellings” or that they “do not appear to be intensively used”.  I see nothing in the 2010 amendments, or in the accompanying policy explanation, to support the notion that it would only be small and intensively used gardens that should not be “grabbed”.
24.	Some weight appears to have been placed in paragraph 12 of the decision to the fact that planning permission had been granted “under different planning policies in 1998”.  Although it is mentioned, the reader is not told where the point is supposed to lead or what significance it carried in the Inspector’s reasoning.  Likewise, reference was made in paragraph 5 to an earlier refusal in which tree protection played a part.  The present proposal by Skillcrown would mean that significant trees could be retained, but what matters is the current application.  It does not seem to be material whether the retention of these particular trees might, or might not, have made a difference to the earlier one.  On this occasion, it does not seem that harm to trees played any part in the Claimant’s refusal.  It was approaching the matter on a different footing and, according to Mr Robinson, focussed particularly upon the recent change to the PPS3 guidance.
25.	Ms Bolton drew my attention to the decision in Simplex GE (Holdings) Ltd v Secretary of State for the Environment [1988] 3 PLR 25, 40-42.  On the basis of the reasoning of the Court of Appeal, she submits that where the maker of a decision has taken into account an irrelevant factor, even though it may not be his dominant reason, the court should quash it – unless it be clear that the same conclusion would have been reached in any event:  see also R v Broadcasting Complaints Commission, ex parte Owen [1985] QB 1153, 1177 (May LJ).
26.	In the present case, therefore, I have to ask myself whether it is clear that the same decision would have been reached on valid reasons, and planning permission granted, even if none of the following factors had played a part in coming to that conclusion:
i)	the reference to a “windfall site”;
ii)	the potential (but unidentified) inconsistency apparently perceived between Policy H4 and the provisions of PPS3, as amended;
iii)	the apparent view of the Inspector that it was for the Claimant to show a compelling case that the location was unsustainable.
They each involved an error of law and/or each of them was irrelevant to the determination the Inspector had to make.
27.	I conclude that I cannot determine what the outcome would have been on these counter-factual assumptions.  In particular, I can divine no other valid reasons that would have pointed towards, still less justified, the grant of planning permission.  On the basis of the Simplex case, therefore, it seems right that I should quash the decision.  I would uphold the Claimant’s Grounds 1 and 2 for the reasons identified above.