England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/06/2013

Mr Justice Turner:

Introduction

1. In July 2011, the second interested party ("the developer") applied to the first claimant ("the Council") for planning permission to proceed with a proposed development which was to involve the demolition of existing structures and the erection of a new food store and associated amenities on land at Audley Avenue, Newport, Shropshire. The Council failed to determine the application within the specified time and this failure prompted the developer to appeal to the defendant ("the Secretary of State") on 20 December 2011. For the sake of convenience, when referring to the Secretary of State and the developer collectively I will use the term "the defendants".
2. In March 2012, the Council resolved that if it had acted within time then it would have refused planning permission for the development. Thereafter it opposed the developer's appeal on putative grounds. In this, it was joined by the second claimant, St Modwen Developments Limited ("St Modwen") which is a company involved in the promotion of a competing site on Station Road of which the Council is the owner. On 25 April 2012 the Plans Board resolved to approve the Station Road site development. However, on 15 June 2012, this application was called in by the Secretary of State who has yet to determine the application.
3. In the meantime, the developer's appeal in respect of the Audley Avenue site proceeded to a planning inquiry. After an inquiry lasting several days, the Inspector, Christina Downes, allowed the appeal in a decision dated 2 August 2012 and granted planning permission for the development of the Audley Avenue site.
4. The Council and St Modwen now seek to challenge this decision..

The legal framework

5. The Council and St Modwen challenge the decision of the Inspector under section 288 of the Town and Country Planning Act 1990. In summary, this section allows parties aggrieved by an Inspector's decision to apply to the High Court and question its validity on the grounds that either it does not fall within the powers of the Act or that any of the relevant requirements have not been complied with in relation to it. If the court is satisfied that the decision in question is not within the powers of the Act or that the interests of an applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it then it may quash that decision.
6. An application under section 288 does not provide an opportunity for the aggrieved parties to pursue a review of the merits of the decision. It is to be determined on public law grounds.
7. As Sullivan J. pointed out in trenchant terms in Newsmith Stainless Ltd v Secretary of State [2001] EWHC Admin 74:

"5 It is important to note at the outset that a challenge under section 288 to the validity of an Inspector's decision on an appeal under section 78 may be made only upon the grounds that the Inspector's decision: (1) is not within the powers of the Act; or (2) that any of the relevant requirements have not been complied with in relation to the decision.

6 An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits.

7 In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.

8 Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task. It might be thought that the basic principles set out above are so well known that they do not need restating. But the Claimant's challenge in the present case, although couched in terms of Wednesbury unreasonableness, is, in truth, a frontal assault upon the Inspector's conclusions on the planning merits of this Green Belt case."

The statutory development plan

8. In circumstances where, as here, the Inspector is taking into account a statutory development plan it is ultimately not for her but for the court, on an application under section 288, to determine the correct interpretation of the plan. As Lord Reed held in Tesco Stores Ltd v Dundee City Council [2012] 2 P. & C.R. 9 at para 18:

"The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle, in this area of public administration as in others …, policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context."

And at para 19:

"…planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean."

9. On the other hand, planning decisions inevitably involve the application of the provisions of the plan to the particular facts of any given case. This process involves the exercise of a judgment that is a matter for the Inspector within the bounds of Wednesbury reasonableness. As Lord Reed went on to find at para 19:

"…many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse."

10. Furthermore, the plan is not to be interpreted as if it were a statute. Lord Reed said at para 9:

"That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another."

Giving reasons

11. Where a challenge is made to the sustainability or the adequacy of the reasons given by the Inspector a broad common sense approach is required which does not involve the deployment of elaborate pedantry. As Sir Thomas Bingham M.R. (as he then was) held in Clarke Homes Limited v Secretary of State (1993) 66 P. & C.R. 263 p. 271:

"There are dangers in over-simplifying issues of this kind as also of over-complicating them. 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."

12. The proper approach to a reasons challenge in the planning context was summarised by Lord Brown in South Bucks District Council v Porter (No. 2) [2004] 1 WLR 1953 at para 36:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how 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."

Fairness

13. The Inspector is under an obligation to act fairly. This includes not making a decision founded upon a basis which the parties have not been given a fair opportunity to address. This does not, however, require the Inspector to provide them with the equivalent of preliminary reasons upon which they may subsequently address her. As Lord Diplock said in F. Hoffman-La Roche and Co AG v Secretary of State for Trade and Industry [1975] A.C. 295 at 369 D–E:

"Even in judicial proceedings in a court of law, once a fair hearing has been given to the rival cases presented by the parties the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."

The grounds

14. It is against the uncontroversial legal background set out above that the claimants seek to challenge the decision of the Inspector. I propose to deal with each ground in turn.

The Sequential Test

15. One of the main issues raised at the Inquiry related to the significance of the location of the rival Station Road site which is closer to Newport town centre than the Audley Avenue site. The claimants sought to persuade the Inspector that the Station Road site was a "sequentially preferable" alternative to the Audley Avenue site and that on this basis the appeal should be dismissed.
16. The policy relevant to considering this issue at a national level was and is contained in the National Planning Policy Framework ("the Framework"), in particular at paragraphs 24 and 27:

"24 Local planning authorities should apply a sequential test to planning applications for main town centre uses that are not in an existing centre and are not in accordance with an up to date local plan. They should require applications for main town centre uses to be located in town centres, then in edge of centre locations and only if suitable sites are not available should out of centre sites be considered. When considering edge of centre and out of centre proposals, preference should be given to accessible sites that are well connected to the town centre. Applicants and local planning authorities should demonstrate flexibilities on issues such as format and scale.

…

27 Where an application fails to satisfy the sequential test or is likely to have significant adverse impact on one or more of the above factors, it should be refused."

17. This Framework succeeded and replaced earlier national policy set out in PPS4 which also contained a sequential test but one which was expressed in different terms than those now to be found in the Framework. Curiously, however, notwithstanding that PPS4 has been superseded, the Practice Guidance which related to it remains extant, applicable and unaltered. It follows that the Practice Guidance is drafted so as to be particularly apt in its application to policy wording which has since been replaced. Nevertheless, this is not to say that the Practice Guidance should be disregarded. After all, the broad policy objectives underlying the sequential test remain even if the wording is different. However, any decision maker would be entitled (and, indeed well advised) to use the Practice Guidance conscious of the fact that, in some parts of its detail, it is directed towards a differently formulated policy test. In so far as is material, PPS4 required the sequential test to be applied as follows :

"POLICY EC15: THE CONSIDERATION OF SEQUENTIAL ASSESSMENTS FOR PLANNING APPLICATIONS FOR MAIN TOWN CENTRE USES THAT ARE NOT IN A CENTRE AND NOT IN ACCORDANCE WITH AN UP TO DATE DEVELOPMENT PLAN"

EC15.1 In considering sequential assessments required under policy EC14.3, local planning authorities should:

(a) ensure that sites are assessed for their availability, suitability and viability

(b) ensure that all in-centre options have been thoroughly assessed before less central sites are considered

(c) ensure that where it has been demonstrated that there are no town centre sites to accommodate a proposed development, preference is given to edge of centre locations which are well connected to the centre by means of easy pedestrian access

(d) ensure that in considering sites in or on the edge of existing centres, developers and operators have demonstrated flexibility…"

I stress that I reproduce this policy not with the intention that it should play any material part in my determination of the proper interpretation of the Framework but merely to illustrate the extent of the differences between the successive policies the change in which is not reflected in any modification of the wording of the Practice Guidance.

18. Fortunately, the consequences of this discrepancy are not jurisprudentially irremediable. If the Practice Guidance were to be interpreted as if it were a statute then the anachronism might well give rise to serious problems for any decision maker. However, the status of the Practice Guidance is such that sufficient flexibility in its use is provided for to mitigate these consequences. As the preface to the Practice Guidance provides:

"The practice guidance does not constitute a statement of Government policy. It is guidance to help those involved in preparing or reviewing need, impact assessments and sequential site assessments, and to help the interpretation of town centre policies set out in the PPS."

19. The Practice Guidance goes on to state:

"Objectives of the practice guidance

1.7 This practice guidance is not intended to be prescriptive or stifle innovation. Rather, it explains an approach that LPAs could take to develop town centre strategies and identify appropriate sites; the role and scope of need and impact assessments and the methodologies that may be employed in carrying out such assessments and the key data inputs, and how to use these to help guide and inform policy and decision making."

20. In the light of the above, those responsible for applying the Practice Guidance are not constrained to interpret its provisions in a rigid, mechanistic fashion. They are guidelines not tramlines.
21. Part 6 of the Practice Guidance provides:

"6.1 A key part of positive planning is to identify those sites likely to be most appropriate to meet any identified need. Adopting a sequential approach to selecting sites means wherever possible seeking to focus new development within, or failing that on well located sites on the edge of defined centres. Only if town centre or edge of centre sites are not available will out of town centres likely be appropriate in policy terms, provided that they are well served by alternative means of transport, and are acceptable in all other respects, including impact.

6.2 The sequential approach is intended to achieve two important policy objectives:

First, the assumption underpinning the policy is that town centre sites (or failing that well connected edge of centre sites) are likely to be the most readily accessible locations by alternative means of transport and will be centrally placed to the catchments established centres serve, thereby reducing the need to travel.

The second, related objective is to seek to accommodate main town centre uses in locations where customers are able to undertake linked trips in order to provide for improved consumer choice and competition. In this way, the benefits of the new development will serve to reinforce the vitality and viability of the existing centre.

6.8 'Out of centre' locations are not in or on the edge of the centre but not necessarily outside the urban area. They are not within easy walking distance of the centre and are therefore unlikely to contribute to linked trips or to share the level of public transport accessibility as the town centre. Where locations in existing centres or edge of centre locations are not available, preference should be given to out of centre sites well served by a choice of means of transport, which are close to a centre and have a higher likelihood of forming links with a centre.

…

6.36 National policy requires those promoting development, where it is argued that no other sequentially preferable sites are appropriate, to demonstrate why such sites are not practical alternatives in terms of their availability, suitability and viability."

22. As I have already observed, the claimants' case is that, on a proper application of the Framework and the Practice Guidance, the Station Road site was sequentially preferable to the appeal site and that the Inspector ought to have made a finding to this effect. It would then follow that, subject to any competing material considerations, the appeal ought to have been dismissed.
23. It is, therefore, necessary to analyse how the Inspector approached the sequential test.
24. The Inspector made the following initial finding:

"The Sequential Test

18. From the evidence I am satisfied that there are no suitable, available or viable alternative sites within the town centre or on its edge that would accommodate a superstore of the type proposed. Reference was made by some objectors to two sites close to the town centre, one in Avenue Road and the other between St Mary's Street and Water Lane. These were found by the Inspector in an appeal for a discount foodstore at Mere Park, Stafford Road to be suitable sequential alternatives. However that scheme was for a much smaller retail unit. Even allowing for some flexibility it is difficult to see how either site would be suitable in terms of its configuration and size for the type of foodstore being proposed in the present appeal."

25. This finding is not the subject of challenge. It is accepted that both the Audley Avenue and Station Road sites were "out of centre".
26. The next stage of the sequential test is to be found in the following wording of the Framework:

"When considering edge of centre and out of centre proposals, preference should be given to accessible sites that are well connected to the town centre."

Can the application of the sequential test give rise to no clear winner?

27. One issue in this case is whether, as the claimants contend, when there are two or more eligible sites, the application of the sequential test must always result in a finding that one site is sequentially superior to the others or whether, in the alternative, it is open to the decision maker to find that two or more sites are sequentially equal.
28. In my judgment, it is, indeed, open to a decision maker to find that one or more sites are sequentially equal.
29. Firstly, there is nothing in the Framework or Practice Guidance which precludes such an eventuality. If those responsible for drafting the Framework had considered it appropriate to discount the possibility of equivalence then it would have been a simple matter to make this clear. They did not.
30. Secondly, it is more in keeping with the nature of a policy (as opposed to a statute or subordinate legislation) that the decision maker called upon to apply it should retain some level of flexibility. There is, therefore, no justification, all other things being equal, to interpret a policy in a narrow, prescriptive sense unless such an interpretation is a particularly compelling one in any given case. No such narrow construction is apposite to the function which was being carried out by the Inspector in this case.
31. Thirdly, there may well arise circumstances in which it would be wholly artificial for the decision maker to be compelled to declare one site to be the sequential victor. Sequential superiority is not to be determined merely by measuring which of two competing sites is closer to the town centre as the crow flies. There will be situations arising in which one proposed site is geographically closer than another but where access is more limited by features such as steep gradients or limitations on the categories of traffic which can make use of such access. It takes no effort of the imagination to conceive of many permutations of factors which would justify a finding that one site is not discernibly sequentially superior to another. In such cases, the Inspector should not be expected to draw fine and potentially specious distinctions simply for the purpose of avoiding a "draw". On this basis, I am not satisfied that the use of the word "preference" in the Framework mandates the making of a stark choice between two or more options.
32. Having concluded that a finding of sequential equivalence is conceptually permissible I must now turn to the claimants' contention that such a finding was not, in any event, open to the Inspector on the particular facts of this case.

Applying the sequential test

33. The Inspector identified the proper approach to comparing two out of town sites with reference to the Framework. She stated at paragraph 20 of her decision letter:

"The Framework provides greater clarity in Paragraph 24: 'When considering edge of centre and out of centre proposals, preference should be given to accessible sites that are well connected to the town centre'. The wording seems to me to be quite clear and it is reasonable to conclude that there is a single test relating to achieving connections with the centre by a choice of travel modes. There would thus be a sequential advantage if one out-of-centre site could achieve better town centre linkages than the other."

34. The claimants refer, in addition, to the policy objectives which are sought to be achieved by the application of the sequential test. These are set out in paragraph 6.2 of the Practical Guidance:

"The sequential approach is intended to achieve two important policy objectives:

• First, the assumption underpinning the policy is that town centre sites (or failing that well connected edge of centre sites) are likely to be the most readily accessible locations by alternative means of transport and will be centrally placed to the catchments established centres serve, thereby reducing the need to travel.

• The second, related objective is to seek to accommodate main town centre uses in locations where customers are able to undertake linked trips in order to provide for improved consumer choice and competition. In this way, the benefits of the new development will serve to reinforce the vitality and viability of the existing centre."

35. It would be wrong, however, to elevate the contents of paragraph 6.2 to a status which involves the strict application of a twofold test. Firstly, this paragraph is an articulation of the policy objectives behind the sequential approach and is neither intended to be nor is expressed to be a statement of the test to be applied to achieve that policy. It may in any given case be helpful to bear the policy objectives in mind when applying the policy but they are not independent tests. Further, with regard to the status of the Practice Guidance generally, albeit at the risk of repetition, I observe that it would be wrong to import into its contents a "bright line" approach to construction more appropriate to the task of the interpretation of a statute or contract. The Guidance informs the process but does not dictate the result.
36. In my view, the Inspector undertook a thorough review of the competing merits of the two sites in the context both of the Framework and of the Guidance.
37. At paragraph 28 of her decision she said:

"I turn now to consider the issue of town centre linkages. For anyone wishing to combine their food shop with a walk to the town centre the most appropriate starting point would be the centre of the foodstore car park. The Station Road proposal indicates that from this point the distance to the PSF would be about 850 metres. Although Station Road carries a fair volume of traffic there are residential properties along either side and it does provide a relatively direct link. The route to the Audley Avenue site is quieter but significantly longer and more convoluted and runs through both a residential area and a commercial area with a mix of uses including a school, business premises and a cemetery. I undertook both of these walks and whilst they were reasonably pleasant in different ways they took about 10 and 17 minutes respectively between the edge of the site and the PSF. There is a glimpse of the trees on the edge of the Station Road land when walking out of the town centre but these seem to me to be too far away to provide the pedestrian with a meaningful visual reference point."

38. She concluded at paragraph 29:

"The turnover of either scheme would be supported by a large proportion of clawback expenditure. Unless there is a radical change in shopping behaviour it is to be expected that rather than driving to Telford, Donnington Wood or Stafford, customers would drive to Station Road or Audley Avenue. This is clearly anticipated by the retailers who would be providing large surface level car parks. For these customers to undertake a linked walking trip to the town centre would mean a walk from the store car park either before or after undertaking the food shop and then back again. It is not suggested that these people would be encumbered with their bags of food shopping or that 400 metres is the maximum distance that people would ever walk. However the evidence from various sources suggests that what equates to a 5 minute walk is generally considered to be an acceptable walking distance for shoppers to undertake. The distance from both sites is considerably further than that."

39. The claimants are critical of this finding but I consider these criticisms to be unfounded. The Guidelines for Providing Journeys on Foot published by the Institution of Highways and Transportation in 2000 suggests an acceptable walking distance on foot in town centres to be 400 metres which, at an average speed of 3mph, involves a five minute walk. Indeed, with specific reference to distance from a supermarket car park to a town centre, an acceptable shorter distance of 200-300 metres is referred to. In contrast, a distance of 800 metres within a town centre is regarded in the same document as a preferred maximum.
40. The inspector concluded unequivocally at paragraph 30:

"I therefore consider that in this case the proclivity for linked walking trips from either site would not be significant."

41. I find her reasoning on this point to be unimpeachable. Both sites were so far away from the town centre that neither could derive meaningful assistance from the likelihood of linked walking trips. Indeed paragraph 6.8 is based on the express assumption that out of centre locations (which both of these sites are admitted to be) "are not within walking distance of the centre and are therefore unlikely to contribute to linked trips…" I note also that the Inspector had the advantage over this court when forming her judgment on the issue having, herself, walked from the town centre to each of the two sites.
42. The claimants object that in paragraphs 51 and 52 of the decision letter the Inspector refers to walking distances of 800 metres and not 400 metres and argue that this renders her reasoning incoherent. I disagree. In these paragraphs, the Inspector was not dealing with walking trips to the sites from the town centre but directly from the homes of local residents. It is evident from the Guidelines for Providing Journeys on Foot and, indeed from common experience, that the journeys which pedestrians are prepared to undertake are dependant not only on distance but also on context. Against this background, the Inspector carefully assessed the numbers of potential pedestrian customers first within a radius of 400 metres (paragraph 50) and then within a radius of 800 metres. To suggest that she should have applied a "one size fits all" approach to the issue of distance is to seek to incapacitate the Inspector from deploying the very nuances of judgment that it is her duty to apply.
43. The Inspector went on to compare what each site had to offer in the way of linked bus trips to the town centre at paragraph 31:

"There is a bus service along Station Road but this only runs about 4 times a day. There is no bus route along Audley Avenue. However both proposals include a similar level of funding for a reconfigured bus service to serve the town as well as the respective retail sites. Whilst there would be some differences in terms of coverage, the offers would be broadly similar with a regular 30 minute service to and from the town centre. I have no reason to believe that either service would not be viable by the end of the 10 year funding period. There would therefore be the opportunity for a linked trip using the bus. Inevitably this would be associated with a smaller food shop limited to the number of bags that could be carried. The appeal scheme would have a bus stop outside the store entrance and this would seem to me to offer a benefit particularly to the elderly. There was little evidence to support the contention by St Modwen that the Big Four retail operators do not favour buses entering a foodstore site for safety reasons"

44. Again, the Inspector found nothing to distinguish between the two sites on this issue save perhaps that the Station Road site had less to offer the elderly in terms of accessibility.
45. On the issue of cycle travel between the sites and the town centre, the Inspector had this to say at paragraph 32:

"There would be the chance to cycle but this would apply to both sites and in any event I am not convinced that in reality a linked trip by bike would be an attractive option for most shoppers. In the circumstances I do not believe that Station Road offers any material advantage in terms of the potential to generate non-car based linked trips with the town centre."

46. Finally, at paragraph 47 the Inspector dealt with the issue of travel by car from the town centre to the respective sites and concluded that it would take about one and a half minutes longer to drive to the Audley Avenue site than to the Station Road site but that this would be unlikely to put people off combining a trip to the food store with a visit to the town centre by car.
47. The combination of these assessments relating as they did to pedestrians, users of public transport, cyclists and car drivers all tied in to justify her finding of sequential equivalence between the two sites.
48. A criticism raised by the claimants is that the Inspector did not accord proper weight to the fact that use of the Station Road site would result in a reduction of traffic generally. The Inspector held at paragraph 32:

"I was also told that for those who do not have access to a car the Station Road site would benefit from a far greater walk-in catchment than the appeal site. This would undoubtedly be true but would be a locational advantage rather than one that would be directly relevant to the sequential test. This was the conclusion of the Inspector in the Worksop decision and a straightforward reading of the Secretary of State's decision does not indicate that he thought differently. The Inspector in the appeal decisions concerning foodstores in Wells made the sensible point that if a walk-in catchment offered a sequential advantage it would favour a wholly suburban residential area regardless of its relationship with the centre."

49. Having regard to the wording of the Guidance, I regard the Inspector's conclusion to be a reasonable one. There were three specific features relating to out of centre sites to which she was enjoined to have regard:

i) how well served the sites were by a choice of means of transport;

ii) which were the sites close to a centre; and

iii) which sites had a higher likelihood of forming links with a centre.

50. Applying these factors, it is apparent from the terms of the decision that the inspector found that there was no material difference between the relative sequential merits of the competing sites. In my view, this was a decision which she was entitled to reach.
51. Furthermore, I am not satisfied that the Inspector was acting unreasonably in relegating the importance of any general comparative advantage which the Station Road Site may have enjoyed in relation to reducing traffic demand. The clear focus of the sequential test is to prioritise the needs of town centres. As the Inspector observed in paragraph 32 of the decision letter, if a walk-in catchment superiority were found to offer a sequential advantage per se this would favour a wholly suburban residential area regardless of its relationship with the town centre. I am not persuaded that paragraph 6.2 of the Guidance dictated a different outcome. The Inspector was in the best possible position to assess what weight should be given to the relative accessibility of the respective sites and there is no legitimate basis with which to interfere with either her conclusions of primary fact on this issue or with the judgment she went on to apply.

Availability, suitability and viability

52. The claimants contend that the Inspector failed to reach or express a conclusion on the issue as to whether the Station Road site could be discounted from consideration within the sequential test as not being available, suitable or viable. The defendants do not dispute this but assert that she was not obliged so to do and are prepared, for the sake of argument, to concede that the Inspector did not discount the Station Road site on any of these grounds; otherwise she would have made it clear that she had done so in her decision letter.
53. In my view, the Inspector was not required, in the application of the relevant policy, formally to articulate any final conclusion on these three issues. Furthermore, I do not doubt that if she had concluded categorically that the Station Road site was not available or not suitable or not viable then she would have recorded this finding and the site would have simply fallen out of the picture. It is reasonable to proceed on the basis that, notwithstanding some misgivings, the Inspector, in the claimants' favour, treated the Station Road site as being compliant with all three requirements. This leaves as the central issue whether or not the Station Road site was sequentially superior. The finding that it was available, suitable and viable was a necessary, but not a sufficient basis, upon which to accord it sequential preference to the Audley Avenue site.
54. By way of example on this point, St Modwen is critical of the Inspector's approach to the availability of the Station Road site. There was an outstanding Village Green Application but the Council as landowner had objected to this and had sought legal advice from Queen's Counsel specialising in such matters who had advised that the residents' application could be successfully resisted (as indeed it later was). There was public footpath crossing the site, but the diversion of footpaths to make way for new development is, contends St Modwen, entirely normal. The Council's Rights of Way Officer had made clear that such a diversion would be perfectly acceptable. The decision by the Secretary of State to call in the application for his own determination after the close of the inquiry did not, it argued, demonstrate it was unavailable. It demonstrated Station Road was the subject of a planning application which the LPA were satisfied could be approved.
55. These points may have enjoyed considerable significance had the Inspector concluded that, in consequence, the Station Road site was not available for the purposes of the application of the sequential test; but the fact is that she did not so conclude. Her decision was that the Station Road site was not sequentially superior; not that it failed the threshold test of availability. Accordingly, St Modwen's arguments on this aspect of the case are not such as to impugn the reasonableness of the Inspector's conclusions.

Greenfield/Brownfield

56. It is not in issue that the proposed Station Road development would be on a greenfield site and that the Audley Road development would be on a brownfield site (otherwise referred to as "previously developed land" or "PDL"). St Modwen is critical of the conclusions which the Inspector drew from this factor. The Inspector approached this and related issues in the following terms:

"23. If it is accepted that some greenfield development outside the settlement boundary will be necessary in order to achieve the strategy envisaged by Policy CS 6 it follows that Policy CS 7 will be breached. Whilst this underlines the difficulties that the Council has in terms of delivering a plan-led solution it does not detract from the objective in the CS to prioritise the use of previously developed land. This is also one of the Core Planning Principles in the Framework. The greenfield nature of the Station Road land counts against it in the face of an alternative brownfield opportunity at the appeal site. The fact that there is some active use still taking place on the appeal site does not disqualify it from being considered as previously developed land and there is nothing in the Framework to suggest otherwise.

24. The Council's 2008 Open Space, Sport and Recreation Facilities Study, which included at least part of the Station Road site, identified that there is a deficiency in accessible open space in Newport. It further indicated that links between the town and nearby countryside should be maximised. Policy CS 11 seeks to protect and enhance areas of formal and informal open space and does not permit development thereon unless the land fails to contribute to the standards set to meet the requirements of the local population. The CS indicates that such standards will be established in a future development plan document, which to date has not been produced."

57. St Modwen points to the Core Principles set out in paragraph 17 of the National Planning Policy Framework which provide:

"Core planning principles

17. Within the overarching roles that the planning system ought to play, a set of core land-use planning principles should underpin both plan-making and decision-taking. These 12 principles are that planning should:… encourage the effective use of land by reusing land that has been previously developed (brownfield land), provided that it is not of high environmental value…"

58. Indeed the Council made the following concession in paragraph 50 of its written submissions dated 29 May 2012:

"The first point that is raised is that the Audley Avenue site is a brownfield site and that there is a notional preference in the NPPF for reusing brownfield sites over greenfield locations. That is a point which is undeniable, and clearly the fact that the Audley Avenue site in a brownfield site is a factor to be put in the positive side of the balance so far as this appeal is concerned."

Having accepted the materiality of this consideration, the document went on to deal with the weight to be attached to it.

59. St Modwen contends that the Inspector fell into error on this issue for failing to mention the fact that at the time she made her decision there was no longer a preferential approach to developing brownfield (or previously developed land "PDL") sites. It traces the history of the material policy and the conclusions to be drawn therefrom in its skeleton argument.
60. It points out that it used to be national policy in Planning Policy Guidance 3 (March 2000) paragraph 32 that there was a presumption that previously developed land should be developed before greenfield land. It concedes that the policy in PPG3 applied to housing land but argues that this approach was often embraced by local authorities in their local development plans to apply to all forms of development. This policy also required the application of a sequential test. It was sequential in the sense that PDL was to be brought forward and given planning permission for redevelopment before greenfield land. It meant that greenfield sites could be refused permission solely because of the existence of a brownfield site which was capable of redevelopment.
61. In November 2006 the PDL/greenfield sequential test was removed from national policy with the publication of PPS3. Again, the change in 2006 related only to housing but St Modwen argues that the publication of the new Framework, which covers all forms of development, makes it clear by omission that there is no longer any PDL/greenfield sequential test to be applied to any form of development.
62. The Borough of Telford and Wrekin imported into the Core Strategy a spatial development strategy which expressly encouraged the development of PDL in preference to greenfield land. The document was adopted in 2007 (after the publication of PPS3 in 2006) although St Modwen alleges that the Core Strategy was primarily drafted beforehand. The wording of the Core Strategy made clear at paragraph 8.4 that the intention was to: "…develop brownfield land in preference to greenfield land…"
63. It follows that in respect of the Telford and Wrekin Core Strategy this stated preference is not confined to just housing proposals. It relates to all forms of development. Yet the Framework (March 2012) contains no such approach.
64. St Modwen criticises the Inspector for failing to acknowledge that national policy no longer contained a sequential PDL/greenfield test at the time she made her decision. It further contends that although the Inspector did refer to the Framework, she concluded the test was one of seeking to prioritise the use of PDL over greenfield land. There is no such stated policy in the Framework. The policy merely encourages the use of PDL.
65. I do not accept the validity of this criticism. The Inspector's use of the word "prioritise" should not be treated as leading to the inevitable conclusion that she was taking an inappropriate sequential approach but merely that she was taking the greenfield/brownfield issue into account in her deliberations; as she remained entitled to do. Equally, there is no merit in the suggestion that the inspector was under an obligation to record the change of national policy particularly since the context of the original policy was in respect of housing rather than retail development.
66. Furthermore, I am satisfied that the Inspector did not, as St Modwen alleges, fall into error in assuming that the greenfield/brownfield issue formed part of the sequential test relating to the policy of promoting town centres. St Modwen suggests that the Inspector concluded that the fact that the Station Road site was greenfield made it "unsuitable" but this argument is unsustainable in the light of the fact that, as all parties agree, the Inspector never recorded a conclusion to the effect that the Station Road site was unsuitable merely that it was not sequentially superior. The context in which the Inspector dealt with this point in her decision (under the heading "Land at Station Road" after the main heading "The Sequential Test") is not a sufficiently strong counter indication of the basis of the Inspector's approach to the greenfield/brownfield issue to persuade me that she fell into error. This is the sort of adverse inference which ought not readily to be drawn on the approach of the court in South Bucks (ibid.).

The Wrekin Local Plan

67. The Wrekin Local Plan was written to cover the period 1995 – 2006. Under the Planning and Compulsory Purchase Act 2004, a new Local Development Framework ("LDF") should have replaced it. An LDF comprises both a Core Strategy and a development site allocation Development Plan Document ("DPD"). After the Core Strategy was adopted, no site allocation DPD had been produced by the Local Planning Authority ("LPA"). It followed that there was no full LDF in place and, as a consequence, the Secretary of State agreed, upon the invitation of the LPA, to save certain policies in the old Local Plan so that they would continue to have effect for the purpose of development management decisions (i.e. the determination of planning applications).
68. One of the policies saved was OL6 which relates to Open Land. It provides:

"OL6: OPEN LAND

Throughout the District, the Council will protect from development locally important incidental open land within or adjacent to built–up areas where land contributes to the character and amenity of the area, has value as a recreational space or importance as a natural habitat."

69. In her decision, the Inspector dealt with policy OL6 thus:

"25. There was considerable debate at the Inquiry as to whether the site is 'locally important incidental open land' under saved LP Policy OL6. The policy makes clear that amongst other things it includes land adjacent to built-up areas that has value as a recreational space or importance as a natural habitat. Although the LP policies fall to be considered under Paragraph 215 of the Framework Policy OL6 is consistent with the objectives of promoting healthy, inclusive communities espoused in that document. The Framework defines 'open space' as being of public value and refers to its importance for providing opportunities for sport and recreation. It therefore seems to me that any distinction between the terms 'open space' and "open land" is rather an academic one in the present context. Paragraph 74 of the Framework indicates that such land should not be built upon unless, inter alia, an assessment has been undertaken which has clearly shown it to be surplus to requirements. The only assessment was that undertaken in 2008 and this identified the shortfall referred to above.

26. The Station Road land is part of a wider swathe of countryside between the southern edge of Newport and its by-pass. It is crossed by the designated public footpath, Hutchison Way. However, the considerable number of written and oral representations by local people plus the Village Green application which has much local support, make clear that this land is greatly valued as an informal recreational resource. This includes use of the permissive footpath along the northern edge of the farmed field which, until it was recently blocked, connected up to the pathways around Millwood Mere and the residential areas beyond. People clearly appreciate the land for its wildlife and also as a green space close to, and accessible from, the residential area immediately to the north. There may be no legal right for the public to enter anywhere other than the Hutchison Way. However that does not mean that the land, including the pony paddock, has not been locally important as an informal recreational resource. It does not appear that the Council as landowner has done anything to prevent people using it for dog walking, habitat enhancement and the like until recently when all access was stopped through the erection of fencing either side of the Hutchison Way footpath.

27. Whilst Policy CS 6 envisages growth to meet the local needs of the town there is no up-to-date spatial plan that shows how the competing land uses, including open space, are to be accommodated. The land to the south of the settlement was not one of the sites referred to by the CS Inspectors as potential greenfield land releases. On the other hand saved Policy OL6 seems directly applicable. In the circumstances it seems to me that there is doubt about the suitability of the Station Road site for a foodstore development in terms of development plan policy. A section of the site is classed as best and most versatile agricultural land but its loss would be relatively insignificant. In the circumstances I do not consider that this matter counts further against the site in terms of its suitability."

70. St Modwen argues that it is a requirement of the policy that to fall within the OL6 designation the land in question should be appropriately described as "incidental". It contends that the Inspector's description of the Station road land as "…part of a wider swathe of countryside…." cannot be categorised as being "incidental". It points out that the Station Road site covers an area which extends to nearly 5 hectares of land.
71. I do not find that land of this area forming part of a wider swathe of countryside cannot also be "incidental". The fact that OL6 makes specific reference to open land "adjacent to" as well as "within" built-up areas suggests that there is no requirement for tightly defined parameters. Furthermore, there is nothing in OL6 to suggest that the policy objectives behind the Plan can be served only by imposing the sort of topographical limitations which would exclude the Station Road site in this case.
72. It follows that the Inspector was entitled to treat the Station Road site as being predominantly open land for the purposes of the application of the Local Plan. She acknowledged that a section of the land was put to agricultural use but expressly excluded this factor as being prejudicial to the suitability of the Station Road site.

Interpretation of Policies CS6 and CS7

73. The Telford and Wrekin Council – Core Strategy Development Plan Document of December 2007 provides at Policy CS6:

"Newport

Development in Newport will support its role as a market town. The amount of available employment land within the town will be increased, in order to provide new local employment opportunities. Development will be limited to that required to meet local needs, including those of its rural hinterland, and to support the town's regeneration. New housing development will be expected to deliver affordable housing to the level of 35% of all such development. Newport's spatial development will include:

development that directly benefits the town's economy;

increasing the accessibility to key services and facilities;

meeting the local need for new homes and related facilities.

All development will respect and enhance the quality of the town's built and natural environments, including its townscape and impact on surrounding countryside."

74. And at Policy C7:

"Rural Areas

Development within the rural area will be limited to that necessary to meet the needs of the area. It will be focussed on the settlements of High Ercall, Tibberton and Waters Upton. New housing development will be expected to deliver affordable housing to the level of 40% of all such development. Outside of these settlements development will be limited and within the open countryside will be strictly controlled."

75. The Inspector deals with these Policies in paragraph 23 of her decision:

"If it is accepted that some greenfield development outside the settlement boundary will be necessary in order to achieve the strategy envisaged by Policy CS 6 it follows that Policy CS 7 will be breached. Whilst this underlines the difficulties that the Council has in terms of delivering a plan-led solution it does not detract from the objective in the CS to prioritise the use of previously developed land. This is also one of the Core Planning Principles in the Framework. The greenfield nature of the Station Road land counts against it in the face of an alternative brownfield opportunity at the appeal site. The fact that there is some active use still taking place on the appeal site does not disqualify it from being considered as previously developed land and there is nothing in the Framework to suggest otherwise."

76. St Modwen criticises the Inspector's approach arguing that Policy CS7 applies to the rural villages of the Borough of Telford and Wrekin but does not apply to Newport, which is specifically covered by Policy CS6.
77. Again, I find that St Modwen is inviting the court to treat these policy objectives as if they were of statutory force. As the Newport inset map of the Telford and Wrekin Local Plan illustrates, the Station Road site falls outside the settlement boundaries of Newport. The Local Plan had not identified any greenfield land for development. In the circumstances, the Inspector had to perform a balancing act between the two objectives. But as Lord Reed pointed out in Tesco Stores Ltd in a passage to which I have already referred:

"As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another"

78. In the circumstances, the Inspector's finding that the application of Policy C7 rendered the Station Road site less suitable was unimpeachable and certainly not beyond the bounds of Wednesbury reasonableness.

The Highways Contribution

79. The Appellants and the Council agreed that transportation improvements including off-site highway works would be needed as a result of the development proposed. The matter was, however, complicated by the fact that the Council had before it a number of other planning applications for development in Newport, principally of a residential nature.
80. The Inspector was provided with a document from Mr Neil Archer, one of the Council's highway development control officers dealing with the issue. Because the proposed developments were not mutually exclusive with respect to the consequential off-site highway works for which they would generate a need, Mr Archer first made an assessment of the cumulative improvements which would be required if all of the applications before the Council were successful. Next, he apportioned the costs pro rata between the proposals having regard to the impacts to which they gave rise with respect to the need for modification at each of the relevant highway junctions.
81. The defendants did not dissent from this approach. However, the extent to which planning obligations such as those relating to the funding of off-site highway works can be taken into account by an Inspector in favour of an application is prescribed by statue and regulation and cannot be overridden by agreement. The problem with Mr Archer's calculations is that they were based on the assumption that all of the proposed developments would go ahead. However, the reality was that if the Audley Avenue site were developed in the proposed manner then the Station Road site would not and vice versa.
82. Against this background it is necessary to consider the legal framework and then to examine how it was addressed and applied by the Inspector.
83. Section 106 of the Town and Country Planning Act 1990 provides in so far as is material:

"Planning obligationsE+W

(1) Any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation (referred to in this section and sections 106A and 106B as "a planning obligation"), enforceable to the extent mentioned in subsection (3) …

(d) requiring a sum or sums to be paid to the authority on a specified date or dates or periodically."

84. In this case the section 106 agreement dated 29 May 2012 provided (in the First Schedule thereto) for payment of a highways contribution of £241,000 towards various off-site strategic works. The contribution was liable to be repaid if unspent on the defined highway works within ten years of the date of payment to the Council. These works did not relate to highway improvements in the vicinity of the appeal site which were dealt with by way of condition.
85. Paragraph 15 of the agreement provided:

"COMMUNITY INFRASTRUCTURE LEVY REGULATIONS

If any of the obligations in the First Schedule to this Deed are found by the Inspector appointed by the Secretary of State not to comply with Regulation 122 (as amended) they shall be cancelled and of no effect but such cancellation shall not affect the validity or enforceability of the remaining parts of this deed."

86. Regulation 122 of the Community Infrastructure Regulations 2010 provides:

"Limitation on use of planning obligationsThis section has no associated Explanatory Memorandum

122.—(1) This regulation applies where a relevant determination is made which results in planning permission being granted for development.

(2) A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is—

(a) necessary to make the development acceptable in planning terms;

(b) directly related to the development; and

(c) fairly and reasonably related in scale and kind to the development.

(3) In this regulation—

"planning obligation" means a planning obligation under section 106 of TCPA 1990…"

87. The National Planning Policy Framework provides as follows:

"Planning conditions and obligations

203. Local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of conditions or planning obligations. Planning obligations should only be used where it is not possible to address unacceptable impacts through a planning condition.

204. Planning obligations should only be sought where they meet all of the following tests:

necessary to make the development acceptable in planning terms;

directly related to the development; and

fairly and reasonably related in scale and kind to the development…

206. Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects."

88. The policy behind Regulation 122 is to inhibit developers from "buying" planning permission with the promise of wide ranging largesse.
89. Inspector dealt with the application of regulation 122 in this way:

"60 The highways contribution related to off site strategic highway works. These include improvements to the capacity of the A41 in accordance with the scheme that has been commissioned by the council and costed on the basis of pooled contributions from a number of major development schemes potentially coming forward. The problem is that it is not known whether these schemes will all be approved or in what timescale. It is appreciated that there is a ten year period after which the contribution would have to be paid back with interest. However there is little certainty that these works will be carried out expeditiously or that the contribution would be proportionate if all of the anticipated developments do not come on stream. Indeed the projects include both the appeal proposal and the Station Road scheme and for the reasons already given it seems very unlikely that both would come forward. In the circumstances I cannot concluded that the contribution is CIL compliant and it cannot therefore constitute a reason for granting planning permission.

61 The council refer to a court of appeal decision concerning Derwent Holdings v Trafford Borough Council, Tesco Stores Limited and Lancashire County Cricket Club. I have noted the comment by the judge that a council and developer may enter into an agreement to secure objectives that are considered desirable for the area even if they are not necessary for the particular development to go ahead. However this was in the context of two schemes being advanced in a single application which also involved significant regeneration benefits. It related to a specific set of circumstances that is very different from those pertinent to the present appeal. On my reading of the judgment there is nothing to say that the test of necessity in regulation 122 of the CIL Regulations should be set aside in the present case."

90. The claimants challenge the validity of this approach on the basis that it is contrary to authority.
91. In Derwent Holdings v Trafford Borough Council, Tesco Stores and Lancashire County Cricket Club [2011] EWCA Civ 832, Carnwath LJ (as he then was) observed as follows:

"15 … We are entitled to start from the presumption that those members who voted for the proposal were guided by the officer's advice. If so, they would have understood that they should consider the merits of the two parts of the proposal separately. They would have found in the officer's report sufficient reasons to conclude that, so viewed, they were acceptable in planning terms. At the same time they would have been aware that the proposal was being put forward as not merely acceptable, but as carrying with it significant regeneration benefits, including the improvement of the cricket ground. The offer of a legal agreement to secure those benefits would no doubt have added to the attractions of the proposal. But that does not mean that it was regarded as necessary to offset some perceived planning objections. Nor is there anything in the officer's report to suggest that it was. There is nothing objectionable in principle in a council and a developer entering into an agreement to secure objectives which are regarded as desirable for the area, whether or not they are necessary to strengthen the planning case for a particular development."

92. This passage is unable, however, to sustain the forensic weight which the Council seeks to put upon its shoulders. It certainly provides no support for the proposition that obligations based on hypothetical calculations which are, in turn, based on assumptions which are almost certainly wrong should be regarded as falling within the regulations. The Inspector did not err in her analysis of this case.
93. My attention has also been directed to the case of Persimmon Homes North Midlands Limited v Secretary of State [2011] EWHC 3931, in which His Honour Judge Purle QC sitting as a Deputy Judge of the High Court concluded as follows:

"13 It seems to me that there was ample reason for the Inspector to conclude that the impact on the sustainable urban extension overall requires other infrastructure matters to be addressed, such as the wider highway network, educational facilities and improved utility services (the ones that he mentions). It seems to me that those requirements could properly be said to be directly attributable, though not exclusively so, to amongst other factors the proposed development by this developer, and that some contribution to those requirements was therefore necessary to make the proposed development acceptable in planning terms. The proposed development could otherwise proceed without regard to its inevitable impact on the remainder of the sustainable urban extension. The Area Action Plan, once completed, will enable the local authority and developers to act in a co-ordinated way in relation to the sustainable urban extension as a whole…

21 Once one rejects the narrow approach founded upon Regulation 122 which Mr. Dove QC urges upon me, and gives a wider construction to what can be regarded as necessary or directly related to the development, it seems to me that the inspector's statement that it was not possible to conclude that the contributions on offer, absent the infrastructure plan, represented a fair proportion of the overall costs, was clearly correct and justified the refusal of permission. At all events, the inspector was in reaching that conclusion exercising planning judgment and I can only interfere if there was an error of law, such as the inspector taking into account material which he should not have taken into account or failing to take into account material which he should have taken into account, or acting perversely. It seems to me that none of that can be said of this inspector who considered both sides' arguments very carefully, having correctly approached the matter on the basis that there were infrastructure requirements, presently subject to public consultation, as to which there was presently insufficient detail to allow a realistic assessment and apportionment of costs."

94. This authority supports the proposition that pooled costs can in appropriate cases satisfy the requirements of Regulation 122 but it does not follow that such costs are, in any given case, bound so to do. The Inspector's stated concern in this case was not that the pooling of costs was conceptually incompatible with the application of Regulation 122 but that the costs did not reflect the reality of what was going to happen in terms of future proposed development.
95. In my view, the Inspector was entitled to reach the decision she did on this issue. Doubtless, the approach of Mr Archer was motivated by an optimistic and well meaning pragmatism which, at the time, suited all parties but, ultimately, the Inspector was bound to apply Regulation 122. It was not unreasonable for her to conclude that, since the calculation of the contribution was based upon what was almost certainly a false premise (i.e. all of the proposed developments would go ahead), then she could not be satisfied that it was necessary under the terms of the Regulation.
96. The Council complains that it was not given a fair opportunity to address this issue before the Inspector reached her decision and that on this ground alone her conclusions are impeachable. Reference is made to the case of R (on the application of Edward Pool) v Secretary of State for Communities and Local Government and Cannock Chase District Council [2008] EWHC 676 (Admin), in which Sullivan J (as he then was) observed:

"40 However, it is most important when deciding whether the parties at an inquiry have had a fair opportunity to comment on an issue raised by an inspector of his or her own motion, and whether they could reasonably have anticipated that an issue had to be addressed because it might be raised by an inspector, to bear in mind the highly focused nature of the modern public inquiry where the whole emphasis of the Rules and procedural guidance contained in Circulars is to encourage the parties to focus their evidence and submission on those matters which are in dispute.

…

42 If a party to an inquiry reasonably believes that a matter which was in dispute has been dealt with by way of agreement in the statement of common ground, it may well be unfair to allow the apparently agreed issue to be reopened without giving the party a proper opportunity to address the issue, if necessary, by calling appropriate expert evidence."

97. However, it is to be noted that the issue of compliance with regulation 122 was raised by the Inspector at the Pre-Inquiry Meeting of 18 April 2012 at paragraph 30 in the following terms:

"The Inspector reminded the parties that information should be provided to rigorously justify the obligations in terms of the CIL Regulations. Ms Clover said that a Highways Officer could be made available to deal with this issue and the Inspector welcomed this issue."

98. Subsequently, in May 2012, the parties prepared a Statement of Common Ground paragraph 2.58 of which provided that the "principle of a contribution to off-site highway improvements is acceptable." Unsurprisingly, the Inspector took the view that this statement fell short of the rigorous justification she had called for.
99. In consequence, Mr Archer attended the inquiry on the third day when the issue of the highways contribution was dealt with by way of a "round table" discussion. During the course of this discussion, the Inspector expressed concern about the concept of pooling contributions and asked if there was any support in policy for such an approach. She was told that there was not. During the discussion, counsel for St Modwen began to explore the highways contribution issue in a way which alarmed counsel for the developer who expressed concern that he was running the risk that the appeal might be jeopardised by a re-opening of the planning obligation to introduce a more complex mechanism of assessment. The Inspector enquired if the developer was prepared for her to determine the matter on the basis of the information before her. Counsel for the developer concurred. The Council did not demur.
100. At the conclusion of the discussion, the Inspector stated that she would look at the planning obligation as presented to her and consider whether it was compliant with the Regulations. She described the test as being one that was straightforward but not necessarily simple to apply. She asked the parties if they wanted to say anything more on the issue and they said that they did not.
101. In its closing written submissions dated 29 May 2012, the Council, doubtless at that stage hoping that the Archer approach would be given the green light, observed that the matters relation to the section 106 obligations "have been fully and carefully explored before the inquiry."
102. Against this background, I am satisfied that the comments of Lord Diplock in Hoffman-La Roche are apposite. The Council was given an adequate opportunity to address the issue as to whether the Archer approach satisfied the threshold requirement of Regulation 122. The Inspector was under no obligation to express a preliminary view and thereafter to invite the parties to articulate reasons in an attempt to persuade her to change her mind.
103. The Council points out that as a result of the decision, it will be in receipt of no contribution to address the off-site highway impacts of the Audley Avenue development. This, however, is not a "stand alone" basis upon which the decision of the Inspector can be legitimately challenged. The section 106 agreement clearly contemplated the possibility that the Inspector might find that the terms of the agreement did not fall within the scope of regulation 122 and provided for the consequences of such a finding. It was open to the Council to make representations to the Inspector and/or to call evidence relating to the consequences if she were to find that the obligations fell outside the regulation. They chose not to do so and must live with those consequences.
104. Against this background it must be noted that the legal effect of a failure to bring an obligation within regulation 122 is to deprive the proposed developer of a potential reason for the granting of planning permission for the development. Accordingly, it was tactically understandable why all parties to the inquiry were hoping that the Inspector would find that the off-site highways was compliant with the regulations. However, there was always the distinct residual possibility that the Inspector would discount the off-site highways obligation as not fulfilling the regulatory requirements but still consider that the remaining merits of the application were sufficient to justify allowing the appeal. This is precisely what happened and, as a result, the developer was fortunate enough to keep both cake and ha'penny as the section 106 agreement with the Council entitled it to do. I note, in passing, that, although it forms no necessary part of my decision on the issue, the section 106 agreement in the Derwent case contained a preamble which expressly recorded that the council in that case was satisfied that the obligations in that agreement were compliant with section 122. No such recital appears in the corresponding agreement in this case. I would record, however, that even if such a term had appeared in the agreement in this case it would not have impacted upon the result. The ultimate arbiter of the issue must always be the Inspector.

Conclusion

105. Accordingly, I find that each of the matters relied upon by the claimants by way of challenge to the decision of the Inspector are not such as to impugn her decision within the parameters of section 288. Accordingly, the decision stands.