England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		18 January 2013

His Honour Judge Sycamore :

INTRODUCTION

1. The defendant, East Devon District Council, is the Local Planning Authority for its area and on 28 March 2011 granted outline planning permission to the interested party, Axminster Carpets Limited, for the development of up to 400 homes, of which 40% were to be affordable housing, on land owned by the interested party outside Axminster. The defendant had resolved to grant outline planning permission on the 21 September 2010 subject to the interested party entering into a section 106 agreement.
2. The claimant, Save our Parkland Appeal Limited, is a company set up by residents of the area. Its objects are described in the articles of association as:

"…

(a) the preservation of the Cloakham Lawn parkland and meadows as an open space and recreational facility and to promote the provision of a North-South relief road for Axminster.

(b) any other trade or business which may seem to the company and its directors to be advantageous and to directly or indirectly enhance all or any of the business of the company."

The company was incorporated on 20 April 2011.

3. The land in question is described by the claimant as parkland but by the defendant and the interested party as rough agricultural land and the Cloakham Lawns Sports Club. In the report of the defendant's planning officer of September 2010 the description is in the following terms:

"The site has an area of 18.9 hectares predominately in use as rough agricultural grassland but does include the Cloakham Lawns Sports Centre towards the western half of the site which has a single track access running centrally through the site to the A358 Chard Road and which is also a public footpath. To the northern end of the site there are a group of agricultural buildings on a raised plateau with an access directly to the Chard Road ….

The Cloakham Lawns Sports Club comprises two cricket fields, bowling green (with associated building) and a main building with car park. There are also a couple of tennis courts, a skate park and play area to the western boundary adjacent to the footpath and the railway line…"

The site is contained within countryside designated as an "Area of Great Landscape Value" and the river Axe to the west of the site is designated as SSS1/SAC …."

Other than a public footpath across the site it is private land with no public access to it.

4. By these proceedings the claimant seeks to challenge the legality of the grant of outline planning permission. Neither the defendant nor the interested party sought to challenge the status of the claimant to bring these proceedings.
5. The claim was originally brought on three grounds namely:

Ground 1 – unlawful failure to comply with section 38 (6) of the Planning and Compulsory Purchase Act 2004 (the grounds of claim refer erroneously to section 38 (6) (of the 1990 Act).

Ground 2 – unlawful breach of the obligations in relation to preparation of the Local Development Framework (LDF).

Ground 3 – unlawful failure to give effect to section 70 (2) of the Town and Country Planning Act 1990 at the time of grant.

Permission was granted on a consideration of the papers on the 10 October 2011 by Mr C M G Ockelton sitting as a Deputy Judge of the High Court on grounds 1 and 2 and refused on ground 3. The claimant no longer pursues ground 3. In granting permission the Deputy High Court Judge observed as follows:

"1 It is arguable that the decision ought to have been made by reference to existing policy rather than future policy, even when the latter was available in draft, and perhaps particularly when the latter was the subject of mandatory consultation at the time the decision was made. Permission is therefore granted on ground 2.

2 I would not have granted permission on ground 1 alone because section 38 (6) permits departure from policy where there are other material considerations outweighing the policy, and there can be little doubt that the report for the members of the Committee (at p180 of the claimant's bundle) identifies factors capable of supporting departure. It is perhaps just arguable that the decision itself failed to justify the departure and in the circumstances I grant permission on ground 1 …."

THE LEGAL FRAMEWORK

6. That a challenge to a planning decision in the Administrative Court is not an opportunity for a review of the planning merits of the decision is well established. In R (on the application of Newsmith Stainless Ltd) v The Secretary of State for the Environment, Transport and The Regions [2001] EWHC Admin 74, Sullivan J, as he then was, said at paragraph 6:

" …. 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. The limited nature of the challenge has been made clear by the courts on many occasions. The weight to be given to any particular material consideration and the making of a planning judgment is a matter for the decision maker, not for the court. See, for example Lord Hoffman in Tesco Stores Limited v Secretary of State for the Environment [1995] 1WLR 759 (HL) 780 at paragraphs 56 and 57:

"…. the law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law, and the latter is a matter of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision making process.

This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local Planning Authority or the Secretary of State …."

In R v Selby District Council ex parte Oxton Farms [1997] EG 60 (CS) (CA, 18 April 1997). Pill LJ held:

"…. a planning officer reporting to and advising council members who are to make a relevant decision must keep the test in mind in the information and advice he provides and in the manner in which he provides it.

Clear mindedness and clarity of expression are obviously important. However that is not to say that a report is to be construed as if it were a statute or that defects of presentation can often render a decision made following its submission to the Council liable to be quashed. The overall fairness of the report, in the context of a statutory test, must be considered…."

8. Judge LJ, as he then was, who agreed with Pill LJ, held:

"…. In my judgment an application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken."

9. In R v Mendip District Council ex parte Fabre (2000) 80 P&CR 500 Sullivan J, as he then was, held at pages 509-510:

"Whilst planning officers' reports should not be equated with inspectors' decision letters, it is well established, that in construing the latter it has to be remembered that they are addressed to the parties who will be well aware of the issues that have been raised in the appeal. They are thus addressed to a knowledgeable readership and the adequacy of their reasoning must be considered against that background. That approach applies with particular force to a planning officer's report to a committee. Its purpose is not to decide the issues, but to inform the members of the relevant considerations relating to the application. It is not addressed to the world at large but to council members who, by virtue of that membership, may be expected to have substantial local and background knowledge. There would be no point in a planning officer's report setting out in great detail background material, for example, in respect of the local topography, development planning policies or matters of planning history if the members were only too familiar with that material. Part of a planning officer's expert function in reporting to the committee must be to make an assessment of how much information needs to be included in his or her report in order to avoid burdening a busy committee with excessive and unnecessary detail ...."

10. Thus the court should take into account the following principles when considering a challenge based upon the content of a planning officer's report:

a) It is not to be construed as if it were a statute;

b) Its overall effect and fairness should be considered;

c) A claim for judicial review will not normally merit consideration unless the overall effect of the report is to significantly mislead the committee about material matters;

d) The author of the report is entitled to assume a knowledgeable readership and that members have particular knowledge of both the planning policy context and the local area.

11. In order for a legitimate expectation to arise there must be a representation by a public body upon which the claimant could reasonably rely or the public body must have adopted a regular practice which the claimant can reasonably expect to continue, see Peter Gibson LJ in Rowland v Environment Agency [2005] Ch 1 at 67 and following and R (Godfrey) v London Borough of Southwark [2012] EWCA Civ 500 at paragraph 32, Pill LJ.
12. The thrust of the claimant's complaint is that by granting planning permission the defendant pre-empted the LDF process.
13. Before setting out the timetable it is necessary to remind myself of the two separate obligations which the defendant has as the local planning authority. The first is the ongoing duty in relation to its development plan function, which often takes several years to complete (see provisions of the Planning and Compulsory Purchase Act 2004). The second is the development control function, in essence to receive and determine planning applications as and when they arise (see Section 70 and Part 3 of the Town and Country Planning Act 1990 (TCP Act) and the Planning and Compulsory Purchase Act 2004 (P&CP Act).
14. Section 70 (2) of the TPC Act 1990 and Section 38 (6) of the P&CP Act 2004 require the decision maker to have regard to the development plan and all material considerations and to take the decision in accordance with the development plan unless material considerations indicate otherwise.
15. Section 70 (2) TPC Act provides:

"In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations."

16. Section 38 (6) P&CP Act provides:

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

17. It was agreed by the parties that the Statutory Development Plan for the area (adopted East Devon Local Plan – 2006) for the period 1995 to 2011 provides at policy S5 (Countryside Protection) as follows:

"The countryside is defined as all those parts of the plan area outside the Built-up Area Boundaries for towns and villages shown on the Proposals Map. The "countryside" also specifically excludes areas that may not currently be developed but have been explicitly allocated for a specific use in plan policy. Development in the countryside will only be permitted where in accordance with a specific Local Plan policy that explicitly permits such development and where it would not harm the distinctive landscape, amenity and environmental qualities within which it is located, including:

1 Land form and patterns of settlement;

2 Important natural and manmade features, which contribute to the local landscape character, including topography, traditional field boundaries, areas of importance for nature conservation and rural buildings; and

3 The adverse disruption of a view from a public place which forms part of the distinctive character of the area or otherwise causes significant visual intrusions."

18. As was acknowledged by the planning officer in his report to the Council the proposed development was contrary to the then current policy S5.
19. The planning application was submitted on 19 April 2010. It was accepted that prior to the submission of the planning application a group of members and officers of the defendant called the Local Development Framework Panel (LDFP) met on a number of occasions from May 2009 onwards. The LDFP itself had no decision making powers but existed in an advisory role to assist and discuss with officers preparing the next stage of the LDF. It was also agreed that at a number of those meetings the LDFP received presentations from landowner and developer interests in respect of sites that owners and developers sought to have included in the plan and that at Axminster those meetings included CSJ Planning, on behalf of the interested party, and another developer, Devonshire Homes, who had interest in land to the north of the Cloakham Lawns site. A meeting took place on 14 May 2009. There was a further meeting on 28 August 2009 when CSJ Planning met with officers and members to explore the possibility of submitting a planning application for housing on the Cloakham Lawns site. Although the claimant complained that the meetings involved secret discussions it was made clear in submissions before me that the claimant did not allege bad faith. Indeed, meetings of this nature with prospective developers are not unusual and are positively encouraged by Central Government, see for example, Planning Policy Statement 1: Delivering Sustainable Development (Office of the Deputy Prime Minister) at paragraph 12:

"Pre-application discussions are critically important and benefit both developers and local planning authorities in ensuring a better mutual understanding of objectives and the constraints that exist. In the course of such discussions proposals can be adapted to ensure that they better reflect community aspirations and that applications are complete and address all the relevant issues. Local planning authorities and applicants should take a positive attitude towards early engagement in pre-application discussions so that formal applications can be dealt with in a more certain and speedy manner and the quality of decisions can be better assured."

That other sites were considered it is clear from the introduction to the notes of the meeting of 14 May 2009:

"Members ….. had received a tour of potential sites for development in Axminster …."

Other developers were present at the meeting and there was a resolution to invite another developer to make a presentation as can be seen from the notes of the meeting:

"…. 2) that Persimmon Homes be invited to make a presentation to the LDF Panel in respect of land at Axminster…."

20. A letter of 1 October 2009 from the defendant to CSJ Planning with reference to the meeting on 28 August 2009 set out and made clear the defendant's position in setting out a summary of members' views including the following:

"First however, it should be noted that this site was being considered by the Members Pre-app Panel ahead of the Council's Local Development Framework Core Strategy preferred Options document being published for public consultation. This document will deal with the strategy for allocating large scale housing developments (amongst other things) both in terms of which settlements will be chosen for future growth and at what scale. This will of course be informed by the draft Regional Strategy (as it stands at present). Consequently, at this point in time, the site can only be considered on its merits against the current policy background as contained in the adopted East Devon Local Plan. However the Council is aware that there is a strong need to secure new housing development, especially affordable housing, which is the Council's top priority for delivery. The consideration of large scale "Departure" applications are therefore being looked at but only on a case by case basis at present….

…. There is clearly much more work to be done to produce an acceptable scheme for this site. Whilst some members had clear reservations about the development of this site the view of the Council remains that there is potential for this site to come forward provided the issues set out above can be adequately resolved….

…. The comments expressed above are of course wholly without prejudice to any formal application being submitted and will not prevent the Council from taking into account any views expressed by interested third parties and statutory consultees such as Axminster Town Council who I understand are opposed to the proposed development…."

The note of the resolution of the meeting on 14 May 2009 included these words:

"…. The Panel wished to make it clear that any steer from the Panel was without prejudice to the subsequent determination by the Development Control Committee…"

21. As I have already observed, a planning application was submitted on the 19 April 2010 which the Council was obliged to deal with and determine. The planning application included a disclosure of the meetings with the LDFP in the following terms:

"Pre-application meetings and presentations to LDF Committee"

In my judgment there was nothing untoward in this process.

22. Although at all relevant times the Statutory Development Plan included the adopted East Devon Local Plan (see paragraph 17 supra) the Council was involved in progressing the early stages of its LDF which will in due course supersede the adopted East Devon Local Plan. It had produced the Issues and Options Consultation Report in December 2008 and produced an analysis of responses received in December 2009. Within that analysis it can be seen that 60% of respondents (130 in number) favoured a northerly expansion of Axminster, which corresponds broadly to the area including the Cloakham Lawns site. The next stage in respect of the LDF was the publication of the LDF Core Strategy preferred options report for public consultation. This was published on the 6 September 2010 and the period of consultation closed on 30 November 2010. The preferred draft policy approach for Axminster was to allocate the Cloakham Lawns site for up to 400 houses:

"Preferred Policy Approach – Draft CS14

Development at Axminster

The preferred approach for Axminster will support and reinforce the town's role as a self-contained medium-sized town, serving the employment, commercial and community service needs of the settlement and its rural surroundings.

Over the 2011 to 2026 period, we will promote and plan for:

1 New Homes – encourage the build – out of existing commitments to development for 580 homes, and allocate a site at Cloakham Lawns for up to 400 houses;

2 Jobs – protect existing and allocated (6.5 hectares) employment land and require further new provision (2 ha) by site allocation Land Allocations development plan document;

3 Town Centre – promote the regeneration of the Webster Garage site and adjoining land to support commercial activity, enhance the public realm and address traffic congestion issues;

4 Transport – support the provision of better sustainable (non-car) transportation, including footpaths, cycle routes and bus services both within the town and to link with the countryside and other settlements, and introduce through – route large vehicle traffic management measures;

5 Infrastructure – ensure good quality accessible recreational facilities, and secure drainage improvements for the town, to mitigate the likely environmental impact of new housing; and

6 Environment – make sure that any development includes safeguards so that there are no, or very limited effects, on protected wildlife and habitat in the Axminster area."

23. The claimant complains that there was a legitimate expectation that the defendant would make the strategic decision as to the scale and location of new housing in Axminster through the LDF process, including by giving consideration to responses to the consultation and not through a process of determining a planning application for Cloakham Lawns which, contends the claimant, pre-empted the LDF consultation process. I observe that the consultation process was at a very early stage and was in relation to the preferred options for the LDF Core Strategy. There was no early prospect of the development of planned documents being submitted for independent examination, as required.
24. I turn now to deal with the specific grounds of challenge.

GROUND 1

25. It is clear that the effect of section 70(2) TCP Act and 38 (6) P&CP Act is to require the decision maker to have regard to the development plan and all material considerations and to take the decision in accordance with the development plan unless material considerations indicate otherwise.
26. The officer's report made clear the following:

"The application has been advertised as a Departure due to its location outside the built up area boundary as defined in the East Devon Plan …."

There was conflict with policy S5 and thus the development plan:

"Settlement Policy

The application site currently lies outside the built up area boundary at Axminster as defined within the East Devon Local Plan 1995-2011 …. The proposed development is therefore contrary to the current policy S5 of the East Devon Local Plan which limits development in the countryside to that which accords with a specific local plan policy."

The officer advised members that they would have to decide whether the policy conflict with policy S5 was outweighed by the benefits of the development:

"…. Members will need to decide whether the principal policy objection relating to the current Local Plan is outweighed by the benefits that this development may bring which is deliverable and reflects the Council's vision for Axminster …"

The officer also pointed out in his report that:

"Affordable Housing

Policy H4 of the Local Plan requires that housing developments in area centres should be provided at a minimum of 40%. It has to be remembered however that this is a Departure site and it is usual to seek an excess of 40% for such sites.

It is proposed however by the applicant to provide 40% affordable housing on the site, for a development of approximately 400 dwellings, this would equate to approximately 160 dwellings. It is intended that 70% of the affordable housing will be rented and the remaining 30% be a shared equity or similar intermediate housing. The phasing for the provision of affordable housing would need to be controlled through a Section 106 Agreement.

The offer of 40% affordable housing with 70% to be rented, is the least that might be expected, that will provide valuable, affordable housing within Axminster. It should be made clear however that this should not be dependent on grant aid."

In the event the members accepted the recommendation of 40% (approximately 160 dwellings) and this was provided for in the Section 106 Agreement at clause 4.1 executed on 24 March 2011. The claimant's Counsel pointed out that in her witness statement of the 7 November 2011 Miss Kathrine Little of the 1^st defendants referred to a total of 100 units of affordable housing. I accept that this was an error on her part as the provisions of the Section 106 Agreement clearly indicate a covenant by the interested party to provide 40% of the dwellings as affordable dwelling units.

27. The officer identified the benefits of the scheme which included the provision of affordable housing and the securing of the future of the sports facility in perpetuity:

"…. It is therefore for the members to decide whether the benefits of the development outweigh the current policy issues bearing in mind the desired direction of the Council towards this site. The primary corporate policy of the Council is affordable housing and this development would provide 40% of much needed affordable dwellings. The application will also secure in perpetuity the retention of the Cloakham Lawns Sports Club together with some financial contribution to enhancement works …."

28. The officer acknowledged that the proposed development accorded with the emerging policy approach identified in the preferred options but made it clear that it should be given limited weight only because it was at an early stage:

"…. The recent published consultation document includes an allocation for residential development on the Cloakham Lawns site. However the Core Strategy is in its very early stages and should therefore be attributed limited weight as a material consideration."

At a later stage in the report the officer said this:

"…. The preferred approach document is therefore at a reasonably early stage in the preparation of the core strategy but nevertheless it is a good indication of the approach the Council will make in future years to development proposals. It therefore carries some weight in the decision process and is a material consideration ….."

29. A number of objections (72 letters in total) to the application for outline planning permission had been received. I deal with them in more detail at paragraph 35 of this judgment. Those letters were referred to in the officer's report to the Committee and considered by the Committee.
30. The report thus made clear to the members that there were policies and factors weighing both against and in favour of the grant of planning permission. The report was full and detailed and cannot be said to have misled the Committee about any material matters. It is clear that the defendant had to undertake a planning balance exercise. That exercise involved the exercise of the judgment of the members of the Committee and the striking of a planning balance. In my judgment the defendant had regard to the development plan and to all material considerations and exercised a judgment in a manner in which it was entitled to do by granting planning permission.
31. The decision of the 21 September 2010 was subject to the Section 106 Agreement which was entered into on 24 March 2011. Outline planning permission was granted on 28 March 2011 and contained a summary of the reasons for the grant. Of particular relevance to this challenge are the reasons set out at paragraphs 2 and 4 of the Summary of Reasons:

"2 Whilst the site is currently outside the built-up area boundary as defined in the East Devon Local Plan, the Preferred Policy Approach – draft CS14 identifies the site at Cloakham Lawns for up to 400 houses. The Core Strategy for the LDF is in an early stage of preparation but the Preferred Approach clearly identifies the Council's position and strategy for housing in Axminster for future years and should therefore be accorded some limited weight ….

…

4 The benefits of the proposal is helping to achieve the corporate policies of the Council and other benefits to the local community, outweigh the current settlement policy of the Council."

In my judgment the reasons are sufficient to tell an informed reader why the application was permitted and it is clear that the members were aware that the application was contrary to policy S5 and that planning permission should be refused unless material circumstances indicated otherwise. The defendant did not err in law in granting permission and ground 1 is dismissed.

GROUND 2

32. As I have already observed the putting in place of a new development plan is a complex and time consuming exercise which can take several years from commencement to final approval. In this case the process was at an early stage and the defendant had a continuing obligation to determine planning applications as and when submitted on the basis of existing policy and other material considerations.
33. There is no doubt that the effect of granting planning permission on emerging development plan documents can be a material consideration. There are circumstances in which it may be justifiable to refuse planning permission on grounds of prematurity where a development plan document is being prepared or is under review, but has not yet been adopted. Government guidance is set out in "The Planning System: General Principles (2005)".

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

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

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

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

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

34. I have already pointed out that the application for outline planning permission was submitted on 19 April 2010. The consultation upon the Core Strategy Preferred Options commenced on the 6 September 2010 and I remind myself that this was not a consultation on a draft Core Strategy but on potential options for a Core Strategy, which would be produced at a later stage.
35. The officer's report to the Committee pointed out that a number of objections (72 letters in total) had been received in relation to the application for outline planning permission.

It is clear that these included concerns relating to prematurity, for example:

" …. This is a piecemeal development with no clear demand or need within the town….

…. The growth of Axminster should be through the LDF process.

…. By submitting an application out of sync with the proper LDF process does not allow other sites to be suggested and considered; the application is therefore premature.

…. This development would put off the additional development that would fund the much needed relief road to the east of the town."

36. As I have already observed, it was on 21 September 2010 that the defendant's Development Committee resolved to grant outline planning permission to develop up to 400 houses at the site. That outline planning permission was granted on 28 March 2011. By the time the Section 106 Agreement had been completed and the planning permission had been granted the consultation responses received in respect of the Preferred Options Consultation had been analysed and reported to members. Those responses did not raise any matters which had not already been raised and considered by the defendant in the third party representations and objections to the planning application considered on 21 September 2010.
37. In contending that the defendant acted in breach of legitimate expectation the claimant essentially maintains that planning permission should not have been granted for the development until the processes for adoption of the core strategy were completed and complains that the LDF panel had been involved in private discussions over proposals which it was known would be controversial with the public.
38. It is clear that at the date of the Committee's decision to grant the planning application (21 September 2010) the consultation process in respect of the Draft Core Strategy was two weeks old. As I have already pointed out there was no early prospect of submission for examination. It is clear, in my judgment, given the government guidance in relation to refusal on prematurity grounds that a refusal on the basis of prematurity would not have been consistent with national planning policy and would have been in breach of central government guidance.
39. Insofar as the claimant seeks to rely on legitimate expectation there is, in my judgment, no basis to suggest that any specific undertaking was given to any particular individual or group.

Regulation 25 of the Town and Country Planning (Local Development) (England) Regulations 2004 deals with the requirement for public participation in the preparation of the development plan document.

"25 (1) A local Planning Authority must –

(a) notify each of the bodies specified in paragraph (2) of the subject of a DPD which they propose to prepare; and

(b) invite each of those bodies to make representations to them about what subject a DPD ought to contain.

(2) The bodies referred to in paragraph (1) are –

(a) such of the specific consultation bodies as the local planning authority consider may have an interest in the subject of the proposed DPD; and

(b) such of the general consultation bodies as the local planning authority consider appropriate.

(3) If a local planning authority proposes to prepare a DPD, they must also consider whether it is appropriate to invite representations from persons who are resident or who are carrying on business in their area.

(4) If a local planning authority decides that it is appropriate to invite representations under paragraph (3) they must make arrangements for the purposes of inviting representation from such persons of the descriptions in paragraph (3) as they think appropriate.

(5) In preparing the DPD, the local planning authority must take into account any representations made to them in response to invitations under paragraph (1) or (4)."

Regulation 25 is thus concerned with the preparation of a development plan document, not planning applications. The Regulations provide for public participation in the development plan document process. They are silent as to the effect of the consultation upon the determination of applications for planning permission. In any event the Regulations do not constitute a representation by the defendant. It does not provide any basis upon which a legitimate expectation could be based.

40. The claimant seeks to rely upon the Statement of Community Involvement ("the Statement") published by the defendant in support of its submissions in relation to a breach of legitimate expectation. This is a document which was published in March 2008 but is described as a pre-submission draft statement consultation. Its status as a draft is clear from paragraph 1.11 which explains:

"Following consideration of any comments received, and amendments, where appropriate, we will produce the submitted version of the statement of community involvement on which formal responses will be sought."

The Statement would then be subject to examination by an inspector and only then for adoption by the Council. The document has not been adopted and although it continues to be displayed on the defendant's website it remains a pre-submission draft consultation. In any event the draft does not make any unambiguous statements that no planning applications will be granted whilst the plan is emerging. There is nothing in the document to indicate that following the issue of a preferred options document no planning permissions for housing generally or indeed in relation to this specific site would be granted. In my judgment the Statement cannot be relied upon as the basis for any claim to legitimate expectation.

41. In my judgement for these reasons the claim under ground 2 also fails. Neither of the grounds of claim establishes any error of law on the part of the defendant in granting the outline planning permission. Accordingly the claim is dismissed.