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
		28 October 2013

Mr Justice Lindblom:

Introduction

1. These three joined cases have been brought before the court by companies promoting proposals for a motorway service area on the A1/A1(M) road in North Yorkshire, in the stretch between Wetherby to the south and Barton to the north. All three cases are applications under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act").
2. The claimants, Jaytee (Rainton) LLP ("Jaytee (Rainton)"), Ms Heather Ive (trading as Heather Ive Associates) ("Heather Ive Associates") and Refined Estates Ltd. ("Refined Estates") each challenge the decision of the first defendant, the Secretary of State for Communities and Local Government ("the Secretary of State"), on 16 October 2012, to grant planning permission for a motorway service area proposed by the first interested party, Mr Carl Les (trading as Motel Leeming Services) ("Motel Leeming") and to reject each claimant's proposal for a motorway service area at a site elsewhere on the same section of the A1: Heather Ive Associates' at Kirby Hill; Jaytee (Rainton)'s near Ripon; and Refined Estates' at Baldersby Gate. In a fifth proposal Exelby Services Ltd. ("Exelby Services") sought planning permission for a truckstop at Coneygarth near Northallerton, which the Secretary of State granted.
3. The two local planning authorities, Harrogate Borough Council ("Harrogate") and Hambleton District Council ("Hambleton"), are both defendants in all three cases. Motel Leeming is an interested party in all three. Heather Ive Associates, Refined Estates and the Highways Agency are all interested parties in Jaytee (Rainton)'s proceedings. North Yorkshire County Council ("North Yorkshire"), as a highway authority, is an interested party both in Jaytee (Rainton)'s and in Refined Estates'. So is Moto Hospitality Ltd. ("Moto Hospitality"), an operator of motorway services, which has agreed heads of terms with Motel Leeming to buy its site and intends to operate the motorway service area that the Secretary of State has approved. The Highways Agency, North Yorkshire, Harrogate and Hambleton have taken no active part in the proceedings. Nor have Exelby Services.
4. On 13 December 2012 Hickinbottom J. ordered that the three cases should be heard together.

Background

5. By the time the Secretary of State made his decision on these proposals a 12-mile section of the A1 between Dishforth and Leeming Bar had been upgraded from a dual carriageway to a three-lane motorway, a project begun in March 2009 and completed in March 2012. This was the first phase of a two-phase project known as A1D2B. The second phase, the upgrading of the section of the A1 from Leeming Bar to Barton, had been postponed in October 2010. A motorway service area had opened at Wetherby in 2008, planning permission for it having been granted on appeal in August 2005. Another, on land used as a lorry park at Barton, had planning permission but had not yet been built. Those two sites are almost exactly 40 miles apart. The sites of the proposed motorway service areas were all in the gap between those two sites.
6. The claimants' schemes were rivals to each other and to Motel Leeming's, because, as all of the parties accepted, if there was a need for a motorway service area on this section of the A1 there was not a need for more than one.
7. The proposal promoted by Heather Ive Associates was for a two-sided motorway service area on land near Kirby Hill, to the east and west of the A1(M) and north of the Ripon to Boroughbridge Road (the B6265). The application for planning permission was submitted to Harrogate in December 2008. Harrogate refused it in March 2009. Heather Ive Associates appealed to the Secretary of State, who, in May 2009, directed that he would determine the appeal himself.
8. Motel Leeming's proposal was for the development of a motorway services area at Motel Leeming Services, at Bedale Road in Bedale, which had been operating there since 1961. The application for planning permission was approved by Hambleton in May 2009, but was called in by the Secretary of State in July 2009. In December 2009 Hambleton published a draft development plan document, in which proposed policy BC 5 allocated Motel Leeming's site for use as a motorway service area serving the upgraded A1. In December 2010 the development plan document was adopted, without that allocation.
9. Jaytee (Rainton)'s proposal was submitted to Harrogate in May 2009. Planning permission was sought for the development of a motorway service area on a field south of the junction of Leeming Lane and Hutton Grange at Hutton Conyers, near Ripon. It was called in by the Secretary of State in July 2010. Harrogate opposed it.
10. Refined Estates' proposal was for a motorway service area on land beside the A1/A61 junction at Baldersby Gate, in an application for planning application submitted to Harrogate in June 2010. It was called in at the same time as Jaytee (Rainton)'s application. And it too was opposed by Harrogate.
11. The site of Exelby Services' proposal for a truckstop was at Fairfield Farm, Leases Road, Leeming Bar, at Coneygarth near Northallerton. This application was submitted to Hambleton in February 2010, and was called in together with Jaytee (Rainton)'s and Refined Estates'.

The inspectors' reports

12. All five of the proposals were considered at a public inquiry held by an inspector appointed by the Secretary of State, Mr R.R. Lyon M.A., C.Eng., M.I.C.E., M.R.T.P.I., F.C.I.H.T. ("the first inspector") on 31 sitting days between 2 November 2010 and 4 February 2011. Heather Ive Associates, Jaytee (Rainton), Refined Estates and Exelby Services all appeared at the inquiry. Each was represented by counsel and produced evidence from professional witnesses. Motel Leeming did not appear, but submitted written representations.
13. The two main issues considered at the inquiry were these: first, whether there was a need for a motorway service area on this section of the A1; and secondly, if there was such a need, which of the proposals, if any, should be approved, in the light of the relevant provisions of the development plan and of national policy.
14. On 25 August 2011 the first inspector submitted his report to the Secretary of State. It runs to more than 300 pages of text, followed by seven annexes. The recommendation, in section 16, was that Refined Estates' proposal for a motorway service area at Baldersby Gate and Exelby Services' proposal for a truckstop at Coneygarth both be approved, and that the other three proposals be rejected.
15. In paragraph 14.1.76 of his report, under the heading "Conclusions on the need for MSA Provision", the first inspector said this:

"I conclude that this combination of factors constitutes a clear and compelling need and safety case for an infill MSA in the gap on the A1/A1(M) between Wetherby and Barton MSAs. The gap is over 40 miles, so the infill MSA would be designated as a core site in accordance with … paragraph 59 [of the Department for Transport's Circular 01/2008 – "Policy on Service Areas and Other Roadside Facilities on Motorways and All-purpose Trunk Roads in England"]."

16. Under the heading "Satisfying the need", in paragraph 14.1.78, the first inspector said:

"I have already concluded that there may be some considerable time before the construction of A1D2B phase 2, and the timing of the construction of Barton MSA is unknown. However, it would seem appropriate to consider the long-term position, particularly as a number of facilities [formerly] available on the A1 have been closed or bypassed."

In paragraph 14.1.79 and 14.1.80 the first inspector referred to the presumption in favour of "on-line" sites in paragraph 97 of Circular 01/08, and the explanation for it:

"14.1.79 [The Highways Agency and Heather Ive Associates] prefer the Kirby Hill location, indicating a reliance on the 'presumption in favour of on-line sites' contained in [Circular] 01/08 paragraph 97. The explanation in the Circular for that presumption is that junction MSAs are more likely to generate undesirable trips from the surrounding area if the facilities are attractive to residents. It then goes on to say that sites that are located further away from the motorway network might discourage drivers from stopping to rest: manoeuvring to use those facilities would increase the risk of accidents and may increase congestion. …

14.1.80 However, these considerations are matters of degree; matters that should be weighed in considering and comparing the sites. …"

17. In paragraph 14.1.84 the first inspector said there was a "clear conflict" between the "presumption" in paragraph 97 of Circular 01/08 and the "preference" in paragraph 59. In paragraphs 14.1.84 and 14.1.85 he supported this view with the "extreme example" of a 56 mile gap between two core motorway service areas, and a series of proposals for additional "on-line" facilities on that stretch of road. In paragraph 14.1.86 he said:

"It is worth considering the language used in [Circular] 01/08: the "absolute minimum distance" is 12 miles. … It is important here to note that Leeming Motel is just 12.828 miles from Barton MSA. It is itself fairly close to the point of unacceptability. … If either Kirby Hill or Motel Leeming were granted planning permission, the gaps would be 12+ miles and 27+ miles. As the absolute minimum acceptable gap is 12 miles, a 3 mile window would be left in each 27+ miles gap where a company might consider that it could make a case for an MSA, an MRA or, following the 22 June Ministerial Statement, Motorway Truckstop. Each would appear within the other's window if either were granted planning permission, with environmental and local implications especially in the case of Kirby Hill. …".

18. The first inspector concluded in paragraph 14.1.87 of his report that "the most important consideration is to place any infill [motorway service area] close to the mid point in an identified gap". He said he had "taken full account" of Heather Ive Associates' argument that the "presumption" in paragraph 97 "takes precedence" over the "'preference' for a mid point solution". In paragraph 14.1.88 he gave his conclusion on this issue:

"… I conclude that one of the Baldserby junction sites would best fulfil the need unless further consideration of the individual sites shows that an off-centre location at Motel Leeming or Kirby Hill is more suitable in either operational, safety or spatial planning terms or in its ability to meet a particular and significant need. In addition, I consider that the round journey of 2.6km to make use of the Motel Leeming would deter many motorists from taking a break when tired which would lessen its potential to satisfy the need for an MSA that would accord with the [Circular] 01/08 need."

19. In paragraph 14.6.10 of his report the first inspector considered the relationship of the Motel Leeming site "with the Motorway boundary":

"Motel Leeming stands almost alongside the A1(M). However, in order to use its facilities, a driver must leave the motorway, drive alongside it for nearly a mile (1.3km), use the services – and then return on the same route. When I drove the route, I noted a sense of frustration in travelling alongside the motorway in the opposite direction to that of the direction of the overall journey, and a palpable feeling of watching time being wasted. Despite [Motel Leeming's] assertion that [its site] is a junction site, and that [Circular] 01/08 refers only to on-line and junction sites, it is in a remote location for users of the kind that [Circular] 01/08 seeks to encourage; it is not a junction site. I have no doubt at all that its attractiveness to a motorist would be significantly below that of an on-line or a junction site. …".

20. In his conclusions on the compliance of the Motel Leeming proposal with the development plan the first inspector said, in paragraph 14.6.57 of his report, that the Motel Leeming proposal would be "an expansion of an existing business" that needed to be "in its current location, the countryside", and that it "would provide jobs, support local business and support the local economy". He concluded, in paragraphs 14.6.57 to 14.6.59, that the proposal complied with the relevant policies of Hambleton's core strategy of April 2007, including policy CP4, which requires an "exceptional case" for development in the countryside, and policy DP25 relating to development outside "Development Limits", so that "an exceptional case has been made and … on balance the proposal would comply with the development plan".
21. Concluding his comparative assessment of the "alternative MSA sites", the first inspector said, in paragraphs 14.8.58 to 14.8.65 of his report:

"14.8.58 There is a clear and compelling need for an infill MSA between Wetherby and Barton, and I judge that the most important consideration in fulfilling that need is to place the infill MSA near to the centre of the 40 mile gap. [14.8.55-56]

14.8.59 The Kirby Hill proposal would conflict with its development plan in terms of encroachment into the countryside, not minimising the loss of BMV land, causing visual harm and adversely affecting the character of the landscape. It would also cause limited harm to the setting of two listed buildings. With regard to the character of the landscape, significant harm would be caused by the inclusion of a large mound and substantial woodland planting. There would be visual harm to receptors at more residential properties than at the other sites. The scheme also attracted more local opposition than the other sites. There are question marks about the speedy deliverability of the site because of uncertainty about the timing of off-site sewerage works and the possibility of additional planning permissions being required. Of particular importance is that the site is considerably off-centre and close to the absolute minimum acceptable spacing of 12 miles advocated by [Circular] 01/08. [14.1.86, 14.3.98-100, 14.8.40 & 42-43, 14.8.54 & 56-57]

14.8.60 The Ripon Services proposal would conflict with its development plan in terms of encroachment into the countryside, not minimising the loss of BMV land, causing visual harm and adversely affecting the character of the landscape. With regard to the landscape character, there would be slight to moderate harm, and a relatively high landtake. There is a question mark about the speedy delivery of the site because the land upon which the access roundabout would be constructed appears to be the subject of a restrictive covenant, which may require legal proceedings to overcome; resolution of these matters could take a significant length of time. [14.4.66 & 68, 14.8.45]

14.8.61 The Baldersby Gate proposal would conflict with its development plan in terms of encroachment into the countryside, not minimising the loss of BMV land, causing visual harm and adversely affecting the character of the landscape. With regard to the landscape character, there would be moderate harm, but with considerably less landtake than at Ripon Services. The Environmental Assessment for the scheme is defective with regard to the assessment of earthworks. To remedy this would take some time but should cause little effect on the deliverability of the scheme. [14.5.72 & 74, 14.8.46]

14.8.62 The Motel Leeming proposal would, on balance, comply with its development plan. It would be the most sustainable of the schemes, and it has attracted some local support. However, of particular importance is that the site is considerably off-centre and close to the absolute minimum acceptable spacing of 12 miles advocated by [Circular] 01/08; and the round journey of 2.6km to make use of the Motel Leeming would deter many motorists from taking a break when tired which would lessen its potential to satisfy the need for an MSA that would accord with the [Circular] 01/08 need. [6.3.7, 14.1.86, 14.8.44, 54 & 54-57]

14.8.63 The further consideration of the individual sites has not shown that an off-centre location at Motel Leeming or Kirby Hill is more suitable in either operational, safety or spatial planning terms or in its ability to meet a particular and significant need. Motel Leeming's sustainability and deliverability advantages and compliance with its development plan is outweighed by its off-centre, relatively remote from the motorway location; it would fall short of meeting the identified need. As well as being considerably off-centre, the Kirby Hill proposal would incur greater harm than either of the Baldersby junction proposals. Even without the question marks on delivery it would be the last choice of the Harrogate District sites. [14.8.58]

14.8.64 There is little to choose between the other two proposals. Neither proposal would be totally in accord with its development plan, but I consider that material considerations indicate that the proposals should be determined otherwise. On balance, particularly given the question marks over deliverability, I consider that the Baldersby Gate scheme should be approved.

Overall conclusion

14.8.65 I conclude that both the Coneygarth truckstop scheme and the Baldersby Gate MSA scheme should be approved."

22. On 8 November 2011 the Secretary of State told the parties that he could not determine the appeal and applications before him because he did not have "sufficient information on certain aspects of the proposals".
23. The inquiry was re-opened on 21 February 2012, before a second inspector, Mr D. Richards B.Soc.Sci., Dip.T.P., M.R.T.P.I. ("the second inspector"), the first inspector having by now retired. The re-opened inquiry lasted for six sitting days, and was closed on 2 March 2012.
24. On 21 May 2012 the second inspector submitted his supplementary report to the Secretary of State. He concluded (in section 9 of his report) that there was nothing in the further information submitted by Refined Estates under regulation 19 of the EIA regulations in January 2012 to alter the first inspector's assessment of the effects of Refined Estates' proposed development on the landscape, and that none of the schemes departed in any significant way from relevant standards in the Design Manual for Roads and Bridges.

The Secretary of State's decision letter

25. In his decision letter the Secretary of State referred to Heather Ive Associates' site and proposal as Case A; Motel Leeming's as Case B; Jaytee (Rainton)'s as Case C; Refined Estates' as Case D; and Exelby Services' as Case E.
26. In paragraph 3 of his letter the Secretary of State said that he agreed with the inspectors' conclusions and recommendations on Cases A, C and E but disagreed with their conclusions and recommendation on cases B and D, and that he proposed to grant planning permission for Cases B and E. Those conclusions are reflected in the Secretary of State's "Formal Decision" in paragraph 44 of his letter.
27. In paragraphs 12 to 14 of his letter the Secretary of State referred to the "Policy considerations" he had taken into account in making his decision. As well as the development plan, to which he referred in paragraph 12, he referred to "other material considerations", including the National Planning Policy Framework and Circular 01/08.
28. In paragraphs 15 to 17, when dealing with the issue of need for a motorway service area, the Secretary of State said:

"15. Like the first Inspector, the Secretary of State considers that it is first necessary to establish whether there is a need for an additional MSA. For the reasons given at IR14.1.3, he agrees with the first Inspector that the starting point is that the [Highways Agency] have defined two core MSAs (Wetherby MSA and Barton – which has planning permission for redevelopment as an MSA) as being the extremities of the gap which the cases before him would fill; and he notes that the parties have agreed that the distance between them, on the basis of the distance between the southern bridges at the relevant junctions, is 39.622 miles. The Secretary of State also agrees (IR14.1.4) that the Government's aim is to establish a network of core MSAs on the basis of a spacing criterion of 28 miles, whilst also agreeing (IR14.1.5-14.1.8) that the mere existence of a gap of 28 miles is not sufficient by itself to show an overriding need for an infill MSA.

16. For the reasons given at IR14.1.9-14.1.19, the Secretary of State agrees with the Inspector's conclusion at IR14.1.20 that any proposal for an MSA in the gap between Wetherby and Barton would be for an infill MSA which, if the gap were to be 40 miles or more, would be designated a core site. The Secretary of State has therefore had regard to the discussion at the first inquiry about the significance of a 40 mile gap between MSAs (IR14.1.21-14.1.28). However, although he agrees with the first Inspector (IR14.1.27) that the additional distances from the motorway to the centre of the main car park at each site would place the separation distance between Wetherby and Barton beyond the 40 mile tipping point, he also agrees (IR14.1.28) that, although that means that any successful application within the gap for an infill MSA would be designated a core site, the requirements of paragraph 58 of [Circular] 01/08 should nevertheless apply – requiring a clear and compelling need and safety case to be demonstrated.

17. The first Inspector therefore goes on to consider this at IR14.1.29-14.1.51, and the Secretary of State agrees with his reasoning and with his conclusion at IR14.1.52 that there is a genuine safety-related need for the construction of an MSA between Wetherby and Barton. In coming to this conclusion, the Secretary of State, like the first Inspector, has taken account of the above average number of fatal and serious injury accidents; the percentage for those for which fatigue was a "possible or very likely" cause; the postponement of the improvement of the section of the A1 between Leeming Bar and Barton; and the indeterminate date for the opening of Barton MSA."

29. In his conclusions on "The Motel Leeming MSA proposal (Case B)", in paragraphs 31 to 33 of his decision letter, the Secretary of State said:

"31. The Secretary of State has carefully considered the first Inspector's findings with regard to the Motel Leeming MSA proposal at IR14.6.1-14.6.37 and his summary thereof at IR14.6.38-14.6.59. For the reasons given by the first Inspector, the Secretary of State agrees with him that the proposal would meet the specified minimum range of mandatory features required in DfT Circular 01/2008 and could accommodate a significant proportion of the abnormal loads likely to need to use it (IR14.6.40).

32. The Secretary of State also agrees with the first Inspector (IR14.6.43) that the proposal would not encroach into the countryside and there would be no loss of agricultural land but, for the reasons given at IR14.6.44-14.6.46, there would be some slight visual impacts. The Secretary of State also agrees with the first Inspector in relation to Heritage (IR14.6.47); Ecology (IR14.6.48); Site drainage (IR14.6.49); Employment (IR14.6.50); Residential amenity (IR14.6.51); the Local economy (IR14.6.52); the fact that the scheme could be delivered quickly (IR14.6.53); and that the proposal would be a sustainable development (IR14.6.54). Furthermore, taking account of the first Inspector's consideration of the development plan (IR14.6.55-14.6.59), the Secretary of State agrees with him (IR14.6.59) that, on balance, the proposal would comply with it.

33. With regard to Highways and Traffic, the Secretary of State agrees with the first Inspector (IR14.6.41) that the Case B site is in a relatively remote location (1.3km from the junction – IR14.6.10), but that there is no reason to suppose that that would lead to any undue accident risk. He also agrees with the second Inspector (2IR3.10.29-3.10.33) that, subject to an appropriate condition, there are no departures from standard required other than those which have already been agreed with the local highways authority."

30. In paragraphs 36 to 42 of his "Overall Conclusions" the Secretary of State said:

"36. A wide range of factors need to be taken into account in determining the most suitable site for an additional MSA along the A1/A1M. Taking as his starting point the requirement of section 38(6) of the Planning and Compulsory Purchase Act 2004 that proposals be determined in accordance with the development plan unless material considerations indicate otherwise, the Secretary of State concludes that only Site B has the necessary statutory planning support. He has therefore gone on to consider whether there are other material considerations in favour of any of the other sites and to undertake an overall balancing exercise.

37. Despite not being in accordance with the development plan, Case A has the advantage of being the only site which is on-line, with direct access from both sides of the motorway, and of being the only proposal capable of meeting the full range of abnormal loads specified. However, the fact that it is only just above 12 miles north of the fully operational Wetherby MSA weighs against it, as do the material considerations that it would have the greatest visual, environmental and heritage impacts as well as the greatest take of BMV land. Furthermore, the need to resolve the drainage issue means the likelihood of some delay in commencing work. Overall, therefore, the Secretary of State concludes that the benefits do not outweigh the disadvantages.

38. As Cases C and D are located on different quadrants of the same junction of the A1(M) and the A61, they are both near the midpoint between Wetherby and Barton. The Secretary of State recognises that both Inspectors consider this centrality to be fundamental and that it should outweigh any other considerations. However, while agreeing that the central location should be given significant weight, the Secretary of State considers it necessary to balance that against other factors, especially given that neither proposal would be in accordance with the development plan.

39. Both Cases C and D would be constructed in open country on green field sites, taking BMV land and causing some visual impact. The site for Case C would take more land than Case D (but less than Case A) whilst, although Case D would take the least of those requiring additional land, it would have a greater visual impact than Site C – especially during construction. In planning terms, therefore, the Secretary of State concludes that the advantages and disadvantages of the two site[s] in planning terms can be regarded as being equal although different; but neither outweighs Case B – especially bearing in mind that neither of them has development plan support.

40. The Secretary of State considers that these factors together outweigh the benefit of centrality. Furthermore, in relation to Case C, there are, additionally, complex land-ownership issues which both Inspectors identify as potentially leading to considerable delay and, although land ownership is not, in itself, a planning matter, the established need for an MSA in this vicinity implies that speed and predictability of delivery should be an important material consideration.

41. As Site B would be based on an existing Trunk Road Service Area, the Secretary of State sees it as being the most sustainable of the options, whilst also conforming in general terms with the development plan. It would be built on brown field land, with no additional land-take and, given the established need for an MSA, the fact that work could start straight away – itself generating jobs and economic activity - weighs heavily in its favour. Against that, the Secretary of State acknowledges that it would require a detour of 1.3 km from the A1(M) to reach it but, although he accepts that that may prove to be a deterrent to some prospective users, he does not consider that it outweighs the advantages of speed of provision without taking any green field land. He also accepts that it would be only slightly more than 12 miles from the potential MSA at Barton; but considers that that is outweighed by the fact that the Site B scheme could be brought on stream relatively quickly to fulfil an existing need while the date for the opening of Barton as a fully operational MSA remains to be determined.

42. Overall, therefore, with regard to the potential MSA sites (Sites A, B, C and D), the Secretary of State concludes that the balance of advantage lies with Site B. Not only is it in general accordance with the development plan but, by making use of brown field land, it avoids taking land in the open countryside and is capable of being brought on stream quickly – thereby making an immediate contribution to the economy of the area while meeting a real need for users of the A1/A1(M).

…".

Circular 01/08

31. Circular 01/08 was issued by the Department for Transport in April 2008. Paragraph 1 of the circular says that it "… sets out policy on the provision, standards and signing of roadside facilities on the Strategic Road Network (SRN), including motorway service areas (MSAs), motorway rest areas (MRAs), truckstops, and services and lay-bys on all-purpose trunk roads (APTRs) … [and] also sets out the role of the Highways Agency in relation to such facilities. …". Paragraph 6 says that "MSAs and other roadside facilities perform an important road safety function by providing opportunities for the travelling public to stop and take a break in the course of their journey". Paragraph 9 states:

"New and existing roadside facilities are subject to the provisions of the Town and Country Planning 1990 and the Planning and Compulsory Purchase Act 2004, which together set the framework under which local planning authorities are to consider applications for such developments. …".

32. Paragraph 16 says that "[allowing] a service area to become a destination in its own right can have a negative impact on road safety".
33. Paragraphs 28 to 31 discuss the way in which the need for roadside facilities on the strategic road network is to be determined. Paragraph 28 says:

"DfT Circular 02/2007 Planning and the Strategic Road Network endorses the Highways Agency's role as a consultee in the planning system. Any roadside facility proposal will need to comply with the policy set out in that Circular. The Highways Agency will provide input to local development frameworks (LDFs), assisting LPAs to consider whether there is sufficient provision of roadside facilities on the SRN by taking account of traffic flows and the need for motorists to stop and take a break at regular intervals. Developers can expect that proposals which are in accordance with the LDF will, in most cases, be granted approval, unless material considerations indicate otherwise.".

34. Paragraphs 32 to 34 deal with access to the strategic road network. Paragraph 32 refers to the "general presumption" in Circular 02/07 "against additional accesses to the motorway and other routes of strategic national importance other than for 'service areas …'." Paragraph 34 states:

"LPAs and developers are encouraged to discuss with the Highways Agency at the earliest opportunity any proposals to develop new roadside facilities to extend existing facilities or to sign existing facilities. The Highways Agency is particularly interested in facilities located wholly or partly within 400 metres of the motorway boundary, or development exceeding 2 hectares in area that include the provision of fuel and refreshments and are situated within 1 kilometre of a motorway junction."

35. Under the heading "Spacing of roadside facilities on motorways" paragraph 52 of the circular says that "[policy] on the spacing of roadside facilities on motorways needs to balance the road safety benefit of allowing drivers regular access to services with the potential detriment to safety, traffic flow and the environment of development alongside motorways and motorway junctions." Paragraph 54 says this:

"There is also a need to limit development alongside motorways and motorway junctions to mitigate the impact of strategic roads on the environment. This applies particularly, though not exclusively, to open countryside and areas of planning restraint …".

Paragraphs 55 and 56 deal with spacing between motorway service areas:

"55. … Any new application for a core MSA should … be considered on the basis of a 28 mile (45 km) distance, or 30 minutes' travelling time, from the previous core MSA, whichever is the lesser.

56. The absolute minimum acceptable distance between facilities on the same route is 12 miles."

Paragraphs 58 and 59 give advice about "infill sites":

"58. Where a clear and compelling need and safety case can be demonstrated, applications for an infill service area may be considered. Individual cases will need to be treated on their merits, and it is not possible to prescribe a comprehensive list of the factors which it might be appropriate to consider in every case. …

59. Where infill sites are proposed, the Government's preference will be that they should be located roughly halfway between MSAs, unless it can be shown that an off-centre location is more suitable in either operational, safety or spatial planning terms or in its ability to meet a particular and significant need. The Government will not agree to more than one infill site between any two core MSAs. Where the spacing between two existing MSAs is 40 miles or greater, any infill site that might be permitted will also be designated as a Core site and must provide the required range of facilities … ".

36. Under the heading "On-line and junction sites" paragraphs 97 and 98 of the circular state:

"97. Although an MSA situated at a junction may be signed from the motorway, there is a presumption in favour of on-line sites. Junction MSAs are more likely to generate undesirable trips from the surrounding area if the facilities are attractive to local residents. In addition, sites that are located further away from the motorway network might discourage drivers from stopping to rest. Where drivers do make use of such facilities, there is a need to leave the motorway, negotiate the junction and later rejoin the motorway. All of these manoeuvres increase the risk of accidents occurring and may cause congestion at the junction or exacerbate an existing congestion problem.

98. However, a junction site may be considered in circumstances where it can clearly be demonstrated that the construction of an on-line MSA would have an adverse impact or could not be delivered due to planning, operational or environmental constraints."

The issues for the court

37. The parties have agreed that, between them, the three cases raise a total of nine issues for the court to decide. These are:

(1) whether the Secretary of State's decision to grant planning permission for Motel Leeming's proposed development was internally inconsistent or irrational, given the first inspector's conclusions on need and on the ability of that development to meet it, and whether the Secretary of State gave intelligible and adequate reasons for his conclusions on these matters (ground 1 of Jaytee (Rainton)'s application);

(2) whether the Secretary of State misinterpreted or misapplied the advice in paragraph 59 Circular 01/08 by failing to apply a preference for an "infill" site located "roughly halfway between [motorway service areas]" and failing to identify any operational, safety or planning factors capable of justifying an "off-centre" location (ground 3 of Jaytee (Rainton)'s application and ground 3 of Refined Estates');

(3) whether the Secretary of State generally gave adequate and intelligible reasons for his decision to approve Motel Leeming's proposed development (ground 3 of Refined Estates' application);

(4) whether the Secretary of State's decision was in conflict with Circular 01/08 if Motel Leeming's proposed development would not be a motorway service area properly so-called, because it was neither an "on-line" nor a "junction" site (ground 1 of Refined Estates' application);

(5) whether the Secretary of State erred by adopting the first inspector's interpretation of Circular 01/08, which led him to conclude that it was more important for a motorway service area to be located at or near the mid-point in the gap than for it to be "on-line" (ground 1A of Heather Ive Associates' application);

(6) whether the Secretary of State erred in accepting the first inspector's conclusion that there was no firm evidence to substantiate the view that "on-line" sites have higher "turn-in rates" (ground 1B of Heather Ive Associates' application);

(7) whether the Secretary of State failed to take into account, as a material consideration, the possibility of further proposals for "roadside facilities" in the gap of more than 27 miles between Wetherby and Barton (ground 4 of Jaytee (Rainton)'s application);

(8) whether the Secretary of State's conclusion that the Motel Leeming development would be delivered quickly was irrational, unsupported by the evidence, or inadequately reasoned (ground 5 of Jaytee (Rainton)'s application and ground 4 of Refined Estates'); and

(9) whether the Secretary of State gave adequate and intelligible reasons for concluding that there was a "likelihood of some delay in commencing work" on Heather Ive Associates' scheme because of the need for drainage works to be carried out, the first inspector having concluded only that such delay was a "possibility" (ground 2 of Heather Ive Associates' application).

38. There is, perhaps inevitably, some overlap between some of those nine issues. Issues (2) and (3) may conveniently be taken together. There were originally two other issues. These were raised by ground 2 of Jaytee (Rainton)'s application and ground 2 of Refined Estates'. Both of those have now gone.
39. Ground 2 of Jaytee (Rainton)'s application concerned the Secretary of State's conclusions on the ability of Motel Leeming's development to meet the identified need, and on where the need would best be met. The contention was this. If the Secretary of State was disagreeing with the first inspector on a finding of fact he ought to have given the parties the opportunity to submit written representations to him before he made his decision. His failure to do so, it was said, was a breach of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000. But that argument was abandoned at the hearing by Mr Richard Moules, who appeared on behalf of Jaytee (Rainton). The simple and conclusive answer to it, as Mr Moules accepted, is that the relevant conclusions of the Secretary of State were not findings of fact. They were matters of planning judgment. The point is therefore hopeless.
40. Ground 2 of Refined Estates' application asserted that the Secretary of State erred in concluding that the Motel Leeming proposal was in accordance with the development plan. This allegation was abandoned at the hearing. Mr Clive Newberry Q.C., who appeared for Refined Estates, recognized that it was unarguable, and he withdrew it. He was clearly right to do so. It is, in my view, quite impossible to say that the Secretary of State's conclusions on the relationship of the Motel Leeming proposals to the development plan were unreasonable or otherwise unlawful. They plainly were not. The same goes for the Secretary of State's conclusions on the relationship of each of the other proposals to the plan. But I shall still have to refer to the significance of those conclusions in the decision.

The law

41. The relevant jurisprudence is familiar and well established. But in view of the way in which these three challenges have been argued some basic principles are worth recalling now:

(1) All matters of planning judgment, including the weight to be attached to any material consideration, are for the decision-maker, not the court (see the speech of Lord Hoffmann in Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759, at p.780). The exercise of planning judgment may only be interfered with by the court if it is Wednesbury unreasonable (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC (Admin) 74, at paragraphs 6 to 8).

(2) The reasons given for a decision must be intelligible, and adequate. They must enable the parties to understand why the decision was what it was, and the conclusions reached on the "principal important controversial issues" (see the speech of Lord Brown of Eaton-under-Heywood in South Buckinghamshire District Council v Porter (No. 2) [2004] 1 WLR 1953, at paragraph 36). Decision letters should be read in good faith, as a whole and not legalistically (see Clarke Homes v Secretary of State [1993] 66 P. & C.R. 263).

(3) The proper interpretation of planning policies is a matter of law for the court. Planning policies should be interpreted objectively in accordance with the language used, read in its proper context (see the decision of the Supreme Court in Tesco Stores Ltd. v Dundee City Council [2012] PTSR 983, in particular paragraphs 18 to 20 in the judgment of Lord Reed).

Issue (1): ground 1 of Jaytee (Rainton)'s application – inconsistency, irrationality and reasons on need and the ability of Motel Leeming's development to meet it

Submissions

42. Mr Moules submitted:

(1) The Secretary of State's decision is internally inconsistent and irrational. He adopted the first inspector's conclusions on need, and did not disagree with him on how, in principle, that need should be met. But he approved the Motel Leeming proposal despite the first inspector's conclusion that the Motel Leeming site was neither central in the gap nor "on-line". He failed to identify any operational, safety or planning justification for preferring an "off-line" facility that would be less able to meet the identified need than a development near the middle of the gap, at the Baldersby junction.

(2) In any event the Secretary of State failed to give proper reasons for departing from the first inspector's conclusions on these matters. In the light of the first inspector's analysis it made no sense for the Secretary of State to conclude that the Motel Leeming development would "fulfil an existing need" (in paragraph 41 of his decision letter) and that it would contribute to the economy of the area "while meeting a real need for users of the A1/A1(M)" (in paragraph 42). This was not a conclusion supported by the first inspector's assessment. The Secretary of State did not expressly disagree with the first inspector's judgment on this question, nor did he give any reasons, let alone intelligible and adequate reasons, for doing so. There is simply no explanation of the Secretary of State's conclusion that "centrality" was not of fundamental importance, no explanation of the balance he struck, and, in particular, no explanation of his conclusion (in paragraph 41) that the detour one would have to make to get to a motorway service area at Motel Leeming's site did not outweigh "the advantages of speed of provision without taking any green field land".

43. Mr Tim Buley for the Secretary of State, and Mr James Maurici Q.C. for Motel Leeming submitted:

(1) The Secretary of State's decision is perfectly rational. This ground does not get beyond the advice in Circular 01/08. It takes no account of the requirement in section 38(6) of the 2004 Act that the decision be taken in accordance with the development plan unless material considerations indicate otherwise. As the Secretary of State said (in paragraph 36 of his decision letter), the only proposal for a motorway service area that complied with the development plan was Motel Leeming's. Having concluded that, he asked himself whether there were any other material considerations outweighing the statutory presumption in favour of the plan. There were not. Indeed, there were considerations that reinforced the presumption. The Motel Leeming site was the most sustainable – in that it would use previously developed land – and was capable of being developed without delay to meet "a real need for users of the A1/A1(M)" and with benefit for the local economy (see paragraphs 41 and 42 of the decision letter).

(2) The Secretary of State's reasons are intelligible and adequate. They leave no room for doubt about the conclusions he reached on the benefits and disadvantages of the Motel Leeming proposal. This was a balancing exercise, in which the Secretary of State had to use his own planning judgment. He referred to the considerations that weighed significantly with him. He did not have to set out his reasons more fully than he did. He clearly found that the considerations referred to in paragraphs 59, and 97 and 98 of Circular 01/08, when applied to the Motel Leeming proposal, did not overcome the presumption in favour of the development plan. He acknowledged that the site was only a little more than 12 miles from Barton – though the motorway service area there was not yet operating and it was still unclear when it would be. And he also acknowledged that the detour from the motorway might discourage some people from using the facility proposed. But in his view other factors outweighed those disadvantages. Circular 01/08 allows such a conclusion.

44. For Moto Hospitality Mr Robert Fookes submitted:

(1) All of the proposals apart from Motel Leeming's were contrary to the development plan. As the first inspector concluded (in paragraphs 14.8.53 and 14.8.62 of his report), Motel Leeming's proposal accorded with the relevant policies of the development plan. The Secretary of State agreed (in paragraphs 41 and 42 of his decision letter). That conclusion is not now attacked in these proceedings, nor could it be.

(2) Mr Moules' argument mistakes the true role of Circular 01/08 and Circular 02/07. These circulars relate mainly to the safety and efficient operation of the highway. They are not a source of planning policy. But in any event the Secretary of State's conclusions on need and how it should be met were not at odds with the guidance in either circular.

Discussion

45. In making his decision on these proposals, once he had accepted there was a relevant need, the Secretary of State had to choose between four schemes of huge potential value to the landowners concerned. None of the schemes was perfect. Each had advantages over its rivals. Each had shortcomings too. The Secretary of State decided to approve one, and turned the others down. For the parties aggrieved this is their only chance of upsetting the decision he made. But the court cannot undo the planning judgment that led him to decide as he did. Of course, his decision might have been different. Perhaps it should have been. And if it had been different it might well have been legally sound. But that has got nothing to do with the question the court has to face. The court is concerned only with the decision that was actually made, not with one that could have been made but was not. And the question is not whether the decision was right, but whether it is legally flawed.
46. Decision-making on proposals for motorway service areas does not exist in a separate domain from the plan-led system of development control. It belongs within that system. No one has suggested that it does not.
47. The Secretary of State's decision had to be made, and in my view was, within the statutory requirements of section 70(2) of the 1990 Act and section 38(6) of the 2004 Act. The decision had to be made in accordance with the plan unless material considerations indicated otherwise. Section 38(6) gives a statutory priority to the development plan. It enshrines a statutory presumption in favour of proposals that comply with the plan (see City of Edinburgh v Secretary of State for Scotland [1997] 1 WLR 1447).
48. Only one of the four rival proposals earned that statutory presumption. The Motel Leeming proposal was found to comply with the relevant development plan. The first inspector and the Secretary of State agreed about that (paragraphs 14.6.59, 14.8.53, 14.8.62 and 14.8.63 of the first inspector's report and paragraphs 32, 36, 41 and 42 of the Secretary of State's decision letter). They also agreed that the other three proposals were in conflict with the plan (paragraphs 14.8.53 and 14.8.59 to 14.8.61 of the first inspector's report and paragraphs 22, 25, 29, 37, 38 and 39 of the decision letter). Once Mr Newberry had withdrawn ground 2 of Refined Estates' application none of those conclusions were challenged in these proceedings, nor could they be.
49. In paragraph 36 of his decision letter the Secretary of State took section 38(6) of the 2004 Act as his starting point, as he had to. He concluded that only the Motel Leeming's proposal had the "necessary statutory planning support". Therefore, as he said, he went on to do two things: first, to ask himself whether there were other material considerations supporting any of the other proposals, and secondly, to carry out what he described as "an overall balancing exercise".
50. It is not in dispute that the Secretary of State was entitled to find a clear advantage in Motel Leeming's proposal because it complied with the development plan. This was not only a benefit of that proposal but also an advantage it could claim over all of the other proposals.
51. The first inspector had seen other benefits and advantages in Motel Leeming's proposed development. He found it would have only a minimal effect on the countryside, whereas each of the others would be a "significant encroachment" (paragraph 14.8.16 of his report). It would involve no loss of the best and most versatile agricultural land, whilst each of the others would (paragraph 14.8.17). It would be the least harmful in its effects on the landscape and in its visual impact (paragraph 14.8.25). It was the only one supported by its local planning authority (paragraph 14.8.54). And it would also be the most sustainable (paragraph 14.8.52). The Secretary of State agreed. In paragraph 41 of his decision letter he said he saw Motel Leeming's site and development "as being the most sustainable of the options, whilst also conforming in general terms with the development plan". He referred (ibid.) to the fact that the development "would be built on brown field land, with no additional land-take …"
52. None of those findings and conclusions by the first inspector and the Secretary of State are contested in these proceedings.
53. All of them fell within the scope of the policy in paragraphs 59 and 98 of Circular 01/08, which refer, respectively, to an "off-centre location" being more suitable in "operational, safety or spatial planning terms" and an "on-line" motorway service area having an "adverse impact … due to planning, operational or environmental constraints" (my emphasis).
54. I should add here that Circular 01/08 is not, of course, part of the development plan. It was one of the other material considerations to which the Secretary of State had to have regard. Paragraph 28 of the circular reminds developers to expect "that proposals that are in accordance with the [local development framework] will, in most cases, be granted approval, unless material considerations indicate otherwise".
55. The ability of a proposed development to meet an identified need for a motorway service area will be a material consideration weighing in favour of planning permission being granted for it. And in this case the ability of the Motel Leeming proposal to meet "the established need for an MSA" was one of the positive factors in the Secretary of State's analysis in paragraphs 41 and 42 of his decision letter.
56. One must read those two paragraphs of the decision letter as part of the whole assessment, which includes the previous five paragraphs in the Secretary of State's "Overall Conclusions" (paragraphs 36 to 40), where the Secretary of State drew on his treatment of the need for a motorway service area (in paragraphs 15 to 17) and his conclusions on the merits of each of the proposals for such development (in paragraphs 21 to 33).
57. On the issue of need the Secretary of State expressed his conclusions very precisely. There were two questions: first, whether there was a need for an additional motorway service area, and secondly, what that need actually was. On the first question the Secretary of State agreed with the first inspector that "the starting point is that the [Highways Agency] have defined two core MSAs (Wetherby MSA and Barton – which has planning permission for redevelopment as an MSA) as being the extremities of the gap which the cases before him would fill" – a gap of about 40 miles (paragraph 15 of the decision letter). The Secretary of State agreed with the first inspector (in paragraph 14.1.28 of his report) that "the requirements of paragraph 58 of [Circular] 01/08 should … apply – requiring a clear and compelling need and safety case to be demonstrated" (paragraph 16 of the decision letter). He also agreed with the first inspector's conclusion (in paragraph 14.1.52 of his report) that "there is a genuine safety need for the construction of an MSA between Wetherby and Barton" in view of the "above average number of fatal and serious injury accidents", the proportion of those accidents in which fatigue had been a "possible or very likely" cause, and two other factors – "the postponement of the improvement of the section of the A1 between Leeming Bar and Barton; and the indeterminate date for the opening of Barton MSA" (paragraph 17 of the decision letter).
58. Whether a proposed development will meet, partly meet or fail to meet a planning need will always have to be considered in the context of what the need is for, whether it can be quantified, the urgency of its being met, and so on. Sometimes a planning need can be established objectively – as in the case of a school or a hospital to serve a particular catchment area. For other kinds of development this may not be so. In the case of supermarkets and superstores, for example, identifying a need and deciding how it ought to be met will normally require the decision-maker to look beyond the retail expenditure being generated by the population in the relevant area and the turnover of existing shops. Other things will be relevant too – the range of goods and services shoppers ought to be able to find in a supermarket within easy reach of their homes, the ability of existing shops to meet those requirements, competition and choice, and so forth.
59. Here the need and the ability of a particular development to meet it were both, to some extent, objective concepts. The need arose on a defined section of road. The inspectors were given data on traffic flows and accidents. The sites were at various places along the motorway, and at various distances from it. Evidence was given on the proposed access arrangements for each proposed development. But judging how well each of them might perform in meeting the need involved some consideration of how attractive to motorists that particular facility in that particular location might be. And this was not something that could be assessed in an entirely objective way. The question of how the need ought to be met was ultimately, therefore, a matter of judgment for the decision-maker. The first inspector came to his own conclusions, which were perfectly clear. The Secretary of State's conclusions were different, but in my view no less clearly expressed, and also legally sound.
60. In his conclusions on the Motel Leeming proposal the Secretary of State said he agreed with the first inspector (in paragraph 14.6.40 of his report) that the development "would meet the specified minimum range of mandatory features required in … [Circular 01/08] …" (paragraph 31 of the decision letter). He also agreed with the first inspector (again in paragraph 14.6.10) that "the [Motel Leeming] site is in a relatively remote location (1.3km from the junction" (paragraph 33). But he went on to say that there was "no reason to suppose that that would lead to any undue accident risk" (ibid.). In his "Overall Conclusions", in paragraphs 40 to 42, the Secretary of State did not say he thought the Motel Leeming development would be the best of the four in meeting the need. He acknowledged the "benefit of centrality" (paragraph 40). He also acknowledged that the detour involved in reaching the facility might be "a deterrent to some prospective users" (paragraph 41). But he concluded nevertheless that providing a motorway service area on that site could "fulfil an existing need" while the date for the opening of the facility at Barton remained uncertain (ibid.), and that it was capable of "meeting a real need for users of the A1/A1(M)" (paragraph 42).
61. Mr Moules and Mr Newberry contrasted those conclusions of the Secretary of State with the first inspector's that the Motel Leeming development would "fall short of meeting the identified need" (paragraph 14.8.63 of his report), that "its attractiveness to a motorist would be significantly below that of an on-line or a junction site" (paragraph 14.6.10), and that the "round journey of 2.6km … would deter many motorists from taking a break when tired which would lessen its potential to satisfy the need for an MSA that would accord with the [Circular] 01/08 need" (paragraph 14.8.57).
62. There are, I accept, clear differences between the inspector and the Secretary of State in their respective conclusions on the ability of the Motel Leeming development to meet the identified need. But that does not mean that the Secretary of State's judgment on this question was unreasonable, or that it was inconsistent with any of his other conclusions. It was not. He was clearly persuaded that the Motel Leeming development was capable of being carried out fast enough to satisfy the need for an additional motorway service area, which would be greater while the facility at Barton remained unbuilt. It would, as he said, meet "a real need" for those using the motorway (paragraph 42 of the decision letter). These plainly were more positive conclusions than the first inspector's. The Secretary of State did not have to share the first inspector's view on the likely success of Motel Leeming's development in meeting the need. However, he was convinced, in the light of the inspector's analysis and the material the parties had submitted, that the development could fulfil a relevant need. That conclusion was consistent with the evidence of the Highways Agency, recorded by the inspector in paragraph 9.5.4 of the first inspector's report:

"By reference to [Circular] 01/08, the [Highways Agency] remains satisfied of the need for an additional MSA on the A1 in the gap between Wetherby and Barton. Any of the 4 MSA proposals before this Inquiry would meet that need. All provide acceptable standards of access (by reference to the SRN) in terms of both safety and capacity - subject to the implementation of mitigation measures where appropriate."

63. I do not think the Secretary of State's use of the word "fulfil" in paragraph 41 of his decision letter renders his conclusions irrational or bad in law in some other way. In its context the word is perfectly understandable and conveys a perfectly reasonable planning judgment. The first inspector himself had employed the word in a comparative rather than absolute sense in paragraphs 14.1.88 and 14.8.57 of his report. In both of those paragraphs one sees him using the expression "best fulfil the need" to describe the superiority – as he saw it – of "the Baldersby junction sites" over the other two, including Motel Leeming's. But in any event, in referring to "the fact that [the Motel Leeming development] could be brought on stream relatively quickly to fulfil an existing need" the Secretary of State was only saying that this was what he expected it to do. Nothing he had already said in his letter, and nothing the first inspector had said in his report, prevented him from taking that view. And it was not an unreasonable view. It was, I believe, comfortably within the bounds of a reasonable planning judgment.
64. Paragraphs 36 to 42 of the Secretary of State's decision letter brought the planning merits of the four schemes into a comparative assessment, in which he considered the advantages and disadvantages of each location, as well as the relationship of each proposal to the development plan. His conclusions in those nine paragraphs were obviously not the same as the first inspector's in paragraphs 14.8.58 to 14.8.65 of his report.
65. The relationship of each proposal to the development plan came first, in paragraph 36. This was logical. Next, in paragraph 37, the Secretary of State acknowledged the benefit of Heather Ive Associates' "on-line" site, but also noted its disadvantage in being as near as it was to the existing motorway service area at Wetherby and the planning objections to its being developed as proposed. Then, in paragraphs 38 to 40, he recognized that the benefit of a "central location" should be given "significant weight" but added that this needed to be balanced against other considerations, including the conflict of both Jaytee (Rainton)'s and Refined Estates' proposals with the development plan. In paragraphs 41 and 42 he came to the advantages of Motel Leeming proposed development, including its compliance with the development plan, as well as the disadvantages of its location.
66. This assessment of four admittedly imperfect proposals seems to me to be both reasonable and clearly explained. As Mr Buley and Mr Maurici submitted, the decision the Secretary of State had to make in this case involved a classic exercise of planning balance and judgment. He concluded, once he had taken everything into account, that the proposal he ought to approve was Motel Leeming's, for the reasons he gave: its conformity with the development plan, which made it unique among the rival schemes, and the sustainability of the development, which would not involve any encroachment into the countryside or any loss of best and most versatile agricultural land or any visual harm. There was no evidence of any impediment to the motorway service area and its access being constructed, or to show that, once opened, it could not be run as a viable business. The Secretary of State knew the proposal was not ideal, given the relative remoteness of the site from the motorway and the fact that it was not centrally placed in the gap between the existing facility at Wetherby and the one with planning permission at Barton. He noted that. But the development would meet a need that needed to be met without delay, not least because the Barton development was yet to come forward. The Secretary of State weighed all the considerations he mentioned, comparing the balance of advantage and disadvantage for Motel Leeming's proposal with the balance of advantage and disadvantage for each of the others. And he concluded that the Motel Leeming proposal was the best of the four. The court would be trespassing beyond its function if it sought to interfere with that judgment. I am not going to do so.
67. Far from being internally inconsistent and irrational, the Secretary of State's conclusions on the question of need, on the ability of the proposed Motel Leeming development to meet it, and on the relative merits of the competing proposals, seem to me to be entirely coherent and clear. They cannot be said to be irrational. In a public law challenge they are unimpeachable.
68. In the end, as Mr Moules seemed to accept in reply, this part of Jaytee (Rainton)'s challenge to the Secretary of State's decision comes down to an attack on the reasons he gave for differing from the first inspector in his conclusions on the ability of the Motor Leeming proposal to meet the identified need.
69. I see no force at all in that argument. The basic principles are well established (see South Buckinghamshire District Council v Porter (No. 2)). The decision-maker must provide intelligible and adequate reasons on the main issues in dispute, knowing that the decision will be read by an informed audience. In this case the audience for the decision included the claimants, who had all taken part in a lengthy public inquiry, submitting evidence and argument to the inspectors on the merits of their own proposals and their rivals'. Both the need for an additional motorway service area and the ability of each proposed development to meet it were central issues. But the Secretary of State's conclusions on those issues did not have to be elaborate. He did not have to give reasons for his reasons. He had to explain what his main conclusions were. In my view he did that impeccably. His reasons, read fairly as a whole, are a straightforward explanation of the decision he reached, in the light of the inspectors' reports. They show how he came to his own conclusions on the issue of need, and on the choice of the right development to meet it. They are intelligible, and they are adequate.
70. In my view, therefore, this ground of Jaytee (Rainton)'s application must fail.

Issues (2) and (3): ground 3 of Jaytee (Rainton)'s application and ground 3 of Refined Estates' – misinterpretation and misapplication of paragraph 59 Circular 01/08, and inadequacy of reasons

Submissions

71. Mr Moules submitted on ground 3 of Jaytee (Rainton)'s application, and Mr Newberry submitted on ground 3 of Refined Estates':

(1) The Secretary of State misinterpreted the policy in Circular 01/08. He failed to understand that the policy contains a preference for "infill" motorway service areas to be roughly at the centre of a gap between such facilities, and that "off-centre" proposals require some specific justification before they can be permitted. That justification may be in "operational, safety or spatial planning terms" or in the "ability [of a proposal] to meet a particular and significant need" (paragraph 59 of Circular 01/08). What the policy means is that "infill" motorway service areas should be located at the centre of the gap unless an "off-centre" location is demonstrably more suitable as a means of meeting the need. The first inspector understood this, as paragraphs 14.1.87 and 14.1.88 of his report make clear. The Secretary of State did not. His misinterpretation of the policy is an error of law (see Tesco Stores Ltd. v Dundee City Council).

(2) If the Secretary of State understood the policy, he misapplied it. He did not explain how the Motel Leeming development could be seen as preferable to a motorway service area in the centre of the gap between existing facilities.

72. Mr Newberry made effectively the same submissions as Mr Moules and added:

(1) The Secretary of State generally failed to give proper and adequate reasons for his decision to grant planning permission for the Motel Leeming proposal.

(2) The first inspector found that the Motel Leeming proposal was not capable of meeting the identified safety-related need for a motorway service area, and the Secretary of State did not explain how he had come to a different conclusion, if he did.

73. Mr Buley and Mr Maurici submitted:

(1) This is, in effect, the same complaint as in ground 1 of Jaytee (Rainton)'s application, though now in a different guise. Paragraph 59 of Circular 01/08 allows for judgment to be exercised in reaching a decision on the right location for a new motorway service area. Paragraphs 38 to 42 of the Secretary of State's decision letter make it absolutely clear that he exercised a judgment within the ambit of the policy, and that the judgment was a reasonable one.

(2) Jaytee (Rainton) and Refined Estates may disagree with the Secretary of State's judgment, but such disagreement does not demonstrate any misinterpretation or misapplication of the policy by the Secretary of State. In reality, this is an attempt to reopen the planning merits.

74. Mr Fookes submitted:

(1) Circular 01/08 acknowledges the need for planning judgment to be exercised when decisions on proposals for motorway service areas are made. One sees this, for example, in its paragraph 28.

(2) In granting planning permission for the Motel Leeming development the Secretary of State did not approve a scheme contrary to either Circular 01/08 or Circular 02/07. In its evidence to the inquiry the Highways Agency had accepted that all of the proposals complied with the requirements of Circular 02/07.

Discussion

75. I see nothing in either of these two grounds. The submissions made by Mr Buley, Mr Maurici and Mr Fookes are in my view cogent. The Secretary of State did not misinterpret or misapply government policy in Circular 01/08, nor were his reasons deficient.
76. The policy in Circular 01/08 was a material consideration in the Secretary of State's decision. And he clearly took it into account. He did not ignore the preference in paragraph 59 of the circular for a central location – a location "roughly half way between [motorway service areas]". In paragraph 14 of his decision letter he referred to the circular among the "other material considerations" he had taken into account. And in paragraphs 37 to 40 of his letter he had regard to what the circular says about the Government's preference for "infill" sites to be centrally located in gaps between existing facilities, and to the inspectors' views on the importance of this point.
77. In paragraph 37 of his letter the Secretary of State said the fact that the Heather Ive Associates' site was "only just above 12 miles north of the fully operational Wetherby [motorway service area]" weighed against it. In paragraph 38 he accepted that "significant weight" should be given to the proposals on sites in a "central location". He balanced that "significant weight" against other factors, including the conflict of Jaytee (Rainton)'s and Refined Estates' proposals with the development plan. He found "the benefit of centrality" outweighed (paragraph 40). In paragraph 41 he went on to acknowledge that the Motel Leeming site was "only slightly more than 12 miles from the potential MSA at Barton". Thus he focused on the application of the policy in paragraph 59 of the circular to that proposal as well, and took this into account in his analysis of the comparative merits of the four schemes.
78. The Secretary of State's conclusion, in paragraphs 32 and 36 of his decision letter, that the Motel Leeming proposal complied with the development plan – the same conclusion as the first inspector had reached on this question – did not rest on an assessment of whether it conformed with policy in Circular 01/08. The Secretary of State did not assess the proposal's compliance with the plan by applying the guidance in the circular. He would have been wrong to do that. And Mr Newberry wisely drew back from submitting that he should have done.
79. In paragraphs 36 to 42 of his decision letter the Secretary of State did exactly what paragraph 59 of the circular envisages. The policy in paragraph 59 is not framed in rigid terms. Its language is the language of preference. The nature of a preference is that it will not always prevail. Paragraph 59 indicates, for the decision-maker, a balancing exercise. The balance is between the preference for a central location and the "operational, safety or spatial planning" attributes of a development proposed in an "off-centre location" or the ability of such a development "to meet a particular and significant need". This was not lost on the Secretary of State. He did not misunderstand the policy.
80. Nor was the policy wrongly applied. Following the guidance in paragraph 59 of the circular, the Secretary of State concentrated on the main "spatial planning" considerations, bringing them into the comparative assessment of the four proposals before him. His judgment on the balance between those considerations and the preference in paragraph 59 was one for him to make. He made that judgment. It is not the court's business to overturn it in the absence of some public law error. And there was, in my view, no such error.
81. The Secretary of State's reasons on this aspect of the case – and generally – are ample. To anyone familiar with the policy in Circular 01/08, and indeed to anyone who is not, the basis for his conclusion that the Motel Leeming site was an acceptable location for a motorway service area, despite its being "off-centre", is as clear as one could wish.
82. I therefore reject both ground 3 of Jaytee (Rainton)'s application and ground 3 of Refined Estates'.

Issue (4): ground 1 of Refined Estates' application – conflict with government policy for motorway service areas in Circular 01/08

Submissions

83. Mr Newberry submitted:

(1) A facility that is neither an "on-line" nor a "junction" site cannot be a motorway service area, because, according to the policy in Circular 01/08, it is not a facility serving the motorway. A motorway service area must adjoin the motorway or be on a "junction" site.

(2) The Secretary of State's decision to grant planning permission for the Motel Leeming proposal was therefore in conflict with the policy in Circular 01/08. The first inspector concluded that the Motel Leeming site was "a remote location" (paragraphs 14.6.10 and 14.6.41). The Secretary of State agreed. He said (in paragraph 33 of his decision letter) that the site was "in a relatively remote location (1.3km from the junction …)", thus accepting that it was neither an "on-line" nor a "junction" site. The first inspector found – and the Secretary of State did not say he disagreed – that this would "lessen [the] potential" of the development at Motel Leeming "to satisfy the need for [a motorway service area] that would accord with the [Circular] 01/08 need …" (paragraph 14.8.62). To grant planning permission for it was to depart from the policy in the circular. And the Secretary of State failed to give any reasons for doing that.

84. Mr Buley submitted:

(1) This ground is based on a false understanding of the policy in Circular 01/08. The policy does not preclude proposals such as Motel Leeming's being approved. It does not define either "on-line" or "junction" sites. And it does not rule out motorway service areas in other locations.

(2) The first inspector did not conclude that the Motel Leeming site failed even to qualify as a potential location for a motorway service area (see paragraph 14.6.10 of his report). The Highways Agency had told him that all of the developments would be able to meet that need (see paragraph 9.5.4 of the first inspector's report). As he said in paragraph 14.1.80 of his report, the considerations involved here are "matters of degree; matters that should be weighed in considering and comparing the sites". The Secretary of State recognized the disadvantages of the Motel Leeming site, but found them outweighed by other considerations. That conclusion was not contrary to the policy in Circular 01/08.

85. Mr Maurici added:

(1) The Secretary of State's assessment of the proposals was consistent with the policy in paragraphs 59 and 97 and 98 of Circular 01/08, and the reasons he gave were adequate and clear. Paragraph 9 of Circular 01/08 emphasizes that proposals for new roadside facilities are to be dealt with in the normal way, in accordance with the provisions of the 1990 Act and the 2004 Act. Refined Estates is now seeking to re-argue the planning merits.

(2) As Mr Les had said on behalf of Motel Leeming in his witness statements of 22 February 2013 and 17 July 2013, the Highways Agency has agreed to the Motel Leeming site being signed as a motorway rest area from the A1, which shows that it is content for the site to be used by motorists on that road.

Discussion

86. I accept the submissions made by Mr Buley and Mr Maurici. The fallacy in the argument for Refined Estates is the idea that Motel Leeming's proposed development was alien to the policy in Circular 01/08. It was not. The policy could be, and was, properly used in gauging its merits.
87. Paragraph 97 of the circular states the "presumption" in favour of "on-line" sites. But the policy here is not confined only to "on-line" sites, which are referred to in the first sentence of paragraph 97, and "junction" motorway service areas, which are referred to in the second. The third sentence refers more broadly to "sites that are located further away from the motorway network". And the fourth refers to drivers making use of "such facilities", leaving the motorway, negotiating the junction and later going back on to the motorway. The policy itself is flexible. There is no hard and fast definition of a "junction" site, nor, indeed, any definition. And no limit is specified for the distance from the motorway of a site "located further away" from it. Both motorway service areas at motorway junctions and those located further away will involve drivers leaving the motorway and rejoining it at a junction. When proposals for such facilities are made the decision-maker will have to consider whether the manoeuvres involved would increase the risk of accidents, cause or worsen congestion, or both.
88. Paragraph 98 of the circular suggests a pragmatic approach. It foresees circumstances in which "junction" sites may be preferable to "on-line" sites when all the relevant considerations are taken into account.
89. It is necessary to read the guidance in paragraphs 97 and 98 together with rest of the policy in the circular. My understanding of paragraph 97, and evidently the Secretary of State's, seems reinforced by what is said in paragraph 34. If the Highways Agency is "particularly interested" in facilities within the stated distance of the motorway boundary (400 metres) or within the stated distance of a motorway junction (one kilometre), one may infer that it will also contemplate facilities not as close to the motorway as that. This would include facilities some distance away from a motorway junction.
90. The Highways Agency was clear in its evidence to the inquiry that the Motel Leeming proposal, in common with the other three, would be able to meet the need for an additional motorway service area (paragraph 9.5.4 of the first inspector's report). Its position, according to the first inspector, was that each of the four proposed developments "would properly constitute a core MSA, forming part of the core network of MSAs for which there is a recognised need within [Circular] 01/08" (paragraph 9.2.23 of the first inspector's report). The Highways Agency had expressed an "order of preference for the MSA proposals", in which it placed the Motel Leeming proposal behind "first Kirby Hill: [and] second either of the Baldersby Gate schemes …" (paragraph 9.2.25 of the first inspector's report). In paragraph 9.5.3 of his report the first inspector noted that the "remote location" of the Motel Leeming site, away from any junction serving the motorway, had "informed the [Highways Agency's] order of preference amongst the MSA proposals". So it is plain that the Highways Agency was not urging the first inspector, or the Secretary of State, to conclude that the Motel Leeming scheme was other than a proposal for a motorway service area to which the policy for such facilities in Circular 01/08 applied. It seems to have accepted that this development would be a motorway service area.
91. In paragraph 14.6.10 of his report the first inspector contrasted the attractiveness to motorists of the proposed development on Motel Leeming's site with "that of an on-line or a junction site". But he did not say that it was impossible to regard Motel Leeming's proposed development as a motorway service area, or that the policy for such facilities in Circular 01/08 was of no relevance to it. He did not say that the development would fail to function as a motorway service area, serving motorists on the A1. What he said was that the Motel Leeming site is "in a remote location for users of the kind that [Circular] 01/08 seeks to encourage", that it is "not a junction site", and that "its attractiveness to a motorist would be significantly below that of an on-line or a junction site". I do not think this can be read as meaning that the Motel Leeming proposal is one to which the policy for motorway service areas in the circular was inapplicable.
92. In his decision letter the Secretary of State applied the policy for motorway service areas in Circular 01/08 to all four of the competing proposals, including Motel Leeming's. In my view he was right to do so.
93. In paragraph 31 of his decision letter the Secretary of State agreed with the first inspector in finding that the development would "meet the specified minimum range of mandatory features required" in the circular. He dealt with the risk of accidents in paragraph 33 of his letter, concluding that there was no reason to suppose that the development of the Motel Leeming site would lead to "any undue accident risk". And he agreed with the second inspector that the development would not require any unacceptable "departures from standard" (ibid.). None of those findings and conclusions are challenged in these proceedings.
94. The Secretary of State did not gloss over the disadvantages of the Motel Leeming site as a location for a motorway service area. He acknowledged them. In paragraph 33 he referred to the site's "relatively remote location", and in paragraph 41 to the "detour of 1.3km from the A1(M) to reach it", and the deterrent this might prove to be for "some prospective users". But he found those disadvantages outweighed by other considerations.
95. In that assessment the Secretary of State did exactly what the policy in paragraphs 97 and 98 of Circular 01/08 suggests a decision-maker should do. The presumption in paragraph 97 is rebuttable, just as the preference in paragraph 59 may yield to other considerations. The guidance enjoins the decision-maker to look at the relevant engineering and safety considerations, but not to ignore planning and environmental factors and any "adverse impact" that an "on-line" development might have. Thus the policy in paragraphs 97 and 98 of the circular, which is about the relationship of sites to the motorway and its junctions, is akin to the policy in paragraph 59, which is about the relationship of sites to existing motorway service areas. In both parts of the circular a balance including operational and safety considerations but embracing the relevant planning considerations as well is what the policy requires. The Secretary of State knew this. He understood the guidance in paragraphs 97 and 98. And he used it correctly. Refined Estates may disagree with the conclusion he reached in the light of the policy, but that does not make his conclusion unlawful. It is not.
96. Once again, there is dissatisfaction with the Secretary of State's reasons, but I see nothing in that. The reasons are plain and sufficient.
97. I therefore reject this ground of Refined Estates' application.

Issue (5): ground 1A of Heather Ive Associates' application – misinterpretation of the advice as to the "presumption" in favour of "on-line" motorway service areas in paragraph 97 of Circular 01/08

Submissions

98. For Heather Ive Associates Ms Sonal Barot submitted:

(1) Both the first inspector and the Secretary of State went wrong in concluding that, in the light of the policy in Circular 01/08, it was more important for a motorway service area to be located roughly halfway between existing or permitted facilities than for it to be "on-line". This conclusion is contrary to both the words and the purpose of the advice in paragraphs 59 and 97 and 98 of the circular. The policy cannot properly be understood as allowing the preference in paragraph 59 to outweigh the presumption in paragraphs 97 and 98. What the circular means is that an "on-line" motorway service area is, or is likely to be, "more suitable in operational [and/or] safety … terms" than a more centrally located "junction" development, thus overcoming the preference for sites "roughly halfway" between existing facilities. This construction of the policy is not disproved by the first inspector's "extreme example" in paragraphs 14.1.84 to 14.1.86 of his report. Paragraph 55 of Circular 01/08 allows a spacing of 28 miles.

(2) The Secretary of State, in adopting the first inspector's misunderstanding of the policy, failed to see that Heather Ive Associates' proposal would be the best capable of meeting the identified need, because its was the only "on-line" site.

(3) The court should not be drawn into judging the comparative merits of Heather Ive Associates' proposed development and Motel Leeming's in the light of a correct understanding of the policy. That would be a task for Secretary of State when he reconsidered the proposals.

99. Mr Buley and Mr Maurici submitted:

(1) This ground goes nowhere because the Secretary of State concluded that both the policy presumption for "on-line" sites and the policy preference for central sites in Circular 01/08 were outweighed by the statutory presumption in favour of the development plan and the other matters to which he referred in paragraphs 41 and 42 of his decision letter.

(2) Ms Barot's is the kind of argument deprecated by the Supreme Court in Tesco Stores Ltd. v Dundee City Council. It attempts to construe a policy document as if it were a contract or a statute. And anyway the interpretation of the circular contended for by Ms Barot is false. The policy is not prescriptive. It does not give priority to the presumption in paragraph 97 over the preference in paragraph 59, nor does it seek to reconcile those two concepts. It is left to the decision-maker to do that, if it has to be done, in the particular circumstances of the case in hand.

(3) Neither the first inspector's assessment of the various considerations to which he referred in paragraphs 14.1.82 to 14.1.88 of his report nor the Secretary of State's own assessment in paragraphs 36 to 42 of his decision letter betrays any misunderstanding of the policy, nor anything irrational in planning judgment.

100. Mr Fookes supported those submissions of Mr Buley and Mr Maurici, adding:

(1) The policy preference for a central location was, in principle, capable of rebutting the policy presumption for an "on-line" site.

(2) The motorway service area at Barton had not yet come forward. There was some uncertainty over when it would. In the circumstances it was reasonable for the Secretary of State to favour a development on a site towards the northern end of the gap between existing facilities, which could be carried out "relatively quickly to fulfil an existing need …" (paragraph 41 of the decision letter).

Discussion

101. I think this ground is misconceived.
102. As Mr Buley and Mr Maurici submitted, the jurisprudence on the interpretation of planning policy is clear. It is encapsulated in paragraph 19 of Lord Reed's judgment in Tesco Stores Ltd. v Dundee City Council, where he was considering the interpretation of statements of policy in the development plan. What he said about the development plan applies also, I believe, to government planning policy and advice intended to guide the making of planning decisions. Lord Reed warned against construing statements of planning policy "as if they were statutory or contractual provisions". And he went on to say this:

"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. In addition, 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: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 780, per Lord Hoffmann. Nevertheless, planning authorities do not live in the world of Humpty Dumpty: and cannot make a development plan mean whatever they would like it to mean."

103. In paragraphs 59, 97 and 98 of Circular 01/08, as Mr Buley submitted, one sees broad statements of government policy for motorway service areas.
104. The advice in paragraph 59 appears in the section of the circular concerned with the spacing of "roadside facilities on motorways". The first paragraph in that section, paragraph 52, refers to the need to balance "the road safety benefit of allowing drivers regular access to services with the potential detriment to safety, traffic flow and the environment of development alongside motorways and at motorway junctions". Paragraph 54 picks up the last of those considerations. It says there is "a need to limit development alongside motorways and motorway junctions to mitigate the impact of strategic roads on the environment". This applies particularly to "open countryside" as well as to designated areas of planning restraint. Those general principles provide the backdrop for what is said in paragraph 59, where the Government states its preference for sites centrally located between existing motorway service areas. As I have said, the preference is just that. It is not mandatory. It does not exclude sites that are not centrally located between existing facilities. The policy accepts that an "off-centre location" may be "more suitable".
105. Not only is the preference in paragraph 59 qualified in that way. It is not said to take precedence over, or to be subordinate to, the presumption in favour of "on-line" sites in paragraph 97. In truth, as Mr Buley submitted, there is policy support for central sites in paragraph 59 and policy support for "on-line" sites in paragraph 97. Both the preference in paragraph 59 and the presumption in paragraph 97 are softer concepts than a requirement would be. Both may be outweighed by other considerations, and indeed by each other, when the decision-maker is exercising its planning judgment. They are not ranked one above the other in some kind of hierarchy. Either may be the more powerful in a planning decision. As Mr Buley and Mr Maurici submitted, in every case where both preference and presumption fall to be considered, the decision-maker will have to exercise judgment in applying them to the sites and proposals in hand. Greater weight may be attached to the preference in paragraph 59, or to the presumption in paragraph 97, or their weight may even be equal. This will depend on the facts and circumstances of the particular case. There will always be other considerations, principally of course the development plan, in the exercise required by section 38(6).
106. In this case the Secretary of State exercised his judgment on these matters differently from the first inspector. He was entitled to do so.
107. In paragraphs 14.1.82 to 14.1.88 of his report the first inspector, for the reasons he gave, concluded that centrality was of paramount importance, and that "one of the Baldersby junction sites would best fulfil the need". He supported his analysis with the example he gave in paragraphs 14.1.84 to 14.1.86. But he took care to temper his conclusions, in words drawn from paragraph 59 of Circular 01/08: "unless further consideration of the individual sites shows that an off-centre location at Motel Leeming or Kirby Hill is more suitable in either operational, safety or spatial planning terms or in its ability to meet a particular and significant need".
108. The Secretary of State came to his own view on this question, and for reasons of his own. He did not endorse the first inspector's analysis, or rely on the example he gave. I cannot fault his approach. In paragraph 37 of his decision letter he acknowledged the "advantage" of the "on-line" location of Heather Ive Associates' site at Kirby Hill, whilst noting its proximity to the existing motorway service area at Wetherby. In paragraph 38 he recognized the "fundamental" importance the inspectors had seen in the "centrality" of Jaytee (Rainton)'s and Refined Estates' sites "on different quadrants of the same junction of the A1(M) and the A61 … near the midpoint between Wetherby and Barton". For the reasons he set out in paragraphs 39 and 40 he gave this consideration "significant" but not decisive weight. In paragraph 41 he weighed against Motel Leeming's proposal the drawbacks of its own site, both in its location further away from the motorway than the others and its closeness to the "potential" motorway service area at Barton. But he found these disadvantages more than counterbalanced by the advantages.
109. I cannot see anything amiss with that as an application of the policy in paragraphs 59 and 97 and 98 of Circular 01/08.
110. The inspectors' job, it should be remembered, was to report: the Secretary of State's to decide. It was the Secretary of State's planning judgment that mattered in the end. And his planning judgment, in my view, was not infected by any misunderstanding or misapplication of those three paragraphs of the circular.
111. This ground of Heather Ive Associates' application therefore fails.

Issue (6): ground 1B of Heather Ive Associates' application – "turn-in" rates

Submissions

112. Ms Barot submitted:

(1) There is an error in paragraph 14.8.11 of the first inspector's report, which the Secretary of State did not put right in his decision letter. In paragraph 14.8.11 the first inspector said there was "no firm evidence" to substantiate Heather Ive Associates' contention that "on-line sites have higher turn-in rates", and noted that Circular 01/08 "does not mention turn-in rates". This was to miss the point that paragraph 97 of the circular clearly bases its presumption in favour of "on-line" sites on the idea that sites "located further away from the motorway network might discourage drivers from stopping to rest".

(2) In paragraph 14.8.11 of his report the first inspector was, in effect, challenging the presumption in paragraph 97 of the circular. But in paragraphs 14.1.78 to 14.1.88 he purported to apply that presumption. There are no intelligible reasons to explain this inconsistency.

(3) There was uncontested evidence before the first inspector from Heather Ive Associates' highway engineer, Mr Brian Plumb – which was referred to in counsel's closing submissions – to show that "on-line" motorway service areas have higher "turn-in" rates. The first inspector failed to take this evidence into account, or, if he did, he failed to give any clear reasons for concluding that it was not "firm evidence". Heather Ive Associates is substantially prejudiced by the failure to give proper reasons.

113. Mr Buley and Mr Maurici submitted:

(1) This ground is, essentially, a challenge to a finding of fact by the first inspector and the judgment he based upon it.

(2) There is nothing inaccurate in what the first inspector said in paragraph 14.8.11 of his report. As he said, "turn-in" rates are used to predict the likely number of vehicles going into a proposed motorway service area and to inform the design of the access arrangements, rather than to demonstrate that one type of facility is better than another. The first inspector did not say there was no evidence at all on "turn-in" rates. But it is plain that he was left unconvinced by such evidence as there was. He did not ignore Mr Plumb's evidence on this matter. He summarized it in paragraph 3.6.5 of his report. He could reasonably find as he did in the light of it – that there was no "firm evidence" of higher "turn-in" rates for "on-line" sites (paragraph 14.8.11 of his report). He was also entitled to find that there was nothing "definitive" by way of guidance on "turn-in" rates (ibid.). He did what he had to do, which was to exercise his judgment on the relevant evidence.

(3) Neither the first inspector's reasons nor the Secretary of State's fell short of what was required.

114. Mr Fookes submitted:

(1) The first inspector's conclusion that there was "no firm evidence" of "on-line" sites having higher "turn-in" rates was compatible with the observation in paragraph 97 of Circular 01/08, which is not supported by any statistics published by the Highways Agency, that sites located further away from the motorway network "might" discourage drivers from stopping to rest.

(2) The Secretary of State did not base his assessment of the proposals on evidence about "turn-in" rates at other locations. There was no need for him to do so.

Discussion

115. I cannot accept Ms Barot's submissions on this ground.
116. The relevant passage in the first inspector's report is in paragraph 14.8.11, where he said this:

"Turn-in rates and sensitivity tests are used to predict levels of traffic flow to a facility and so inform the design of the accesses to the [motorway service areas]. However, the parties also use them to try to demonstrate the superiority of one type of facility over another. [Heather Ive Associates'] insists that on-line sites have higher turn-in rates but I am clear that there is no firm evidence to substantiate that. Most particularly [Circular] 01/08 does not mention turn in rates; none of the Core Documents on sleep related accidents refers to on or off-line MSAs, and [the Highways Agency and North Yorkshire] agree that there is no definitive guidance on turn-in rates and that there is a broad range of observed rates at existing [motorway service areas] [5.7.9, 9.1.3]".

117. The two paragraphs referred to at the end of paragraph 14.8.11 – paragraphs 5.7.9 and 9.1.3 – appear, respectively, in the sections of the first inspector's report where he was addressing the case for Refined Estates on the question "Which Location Best Meets the Need?" and the case for the Highways Agency where it related to traffic flows, trip generation and "turn-in" rates. The first inspector recorded Refined Estates' case on "turn-in" rates, in paragraph 5.7.9, in this way:

"Based on data from the previous Inquiry, [Refined Estates'] transport assessment employed turn-in rates of 15% of A1 northbound traffic, 10% southbound, and 3.5% for A61 in both directions … . [Heather Ive Associates] asserts that Kirby Hill would attract a greater turn in rate. This is not accepted. The proximity to Wetherby (hard on the 12 mile limit) means that Wetherby will continue to attract trade from the motorway which might have otherwise gone to Kirby Hill. This is one of the reasons why mid gap spacing is so important in the context of [paragraph] 55 [of Circular 01/08]. No assessment or allowance has been made by the [Highways Agency] in its [paragraph] 97 stance."

118. The Highways Agency's case on this point is summarized in paragraph 9.1.3 of the first inspector's report:

"… As there is no definitive guidance on turn-rates (and hence trip generation) for MSAs and there is a broad range of observed turn-in rates at existing MSAs, agreement between all parties on a common approach was not possible. Each developer was required to provide to [the Highways Agency] and [North Yorkshire County Council] an evidenced rationale behind the individual turn-in rates they proposed for their respective sites… ".

119. What the first inspector said in paragraph 14.8.11 was not simply a finding of fact. It was his conclusion, as a matter of judgment, that the evidence before him was not enough to convince him of the proposition Heather Ive Associates was urging upon him. For this ground to succeed, therefore, Ms Barot would have to show that what the first inspector said was simply perverse or that he had demonstrably ignored factual or statistical evidence that supported the conclusion for which Heather Ive Associates contended. I think that is impossible.
120. In his witness statement of 3 December 2012 Mr Plumb says:

"3. In my oral evidence to the inquiry, I explained that statistical evidence of turn-in rates (that is, the percentage of cars passing an MSA that turn in to use it) for existing MSAs … indicated that on-line MSAs have higher turn-in rates than junction MSAs. The particular examples I gave to illustrate this were as follows:

a. Clackett Lane Services, which is an on-line MSA on the M25 in Surrey. I explained to the inquiry that studies have shown that this MSA benefits from daily turn-in rates of around 10%.

b. Warwick Services, which is an on-line MSA on the M40 near Warwick. I explained to the inquiry that studies have shown that this MSA also benefits from daily turn-in rates of around 10%.

c. Cherwell Services, which is a junction MSA on the M40 in Oxfordshire. I explained to the inquiry that studies have shown that this MSA benefits from daily turn-in rates of only 6%. I explained that in my expert judgment, the obvious reason for this lesser figure was because the MSA was further from the motorway and less convenient than the on-line MSAs to which I have referred above.

4. I was present when Mr Stuart Wilkins, the expert highways witness for [Jaytee (Rainton)], gave evidence to the November 2010-February 2011 [inquiry]. I recall that he agreed in cross-examination by [Heather Ive Associates'] counsel that these figures were broadly representative of the differences in daily turn-in rates enjoyed by on-line and junction MSAs. He also agreed that the higher the turn-in rates that a MSA enjoys, the more effective it will be at preventing fatigue related accidents since more drivers will be stopping to take a break.

5. In the light of the above, I do not understand why the First Inspector stated at paragraph 14.8.11 of his report, without giving reasons, that there had been "no firm evidence" before him that on-line MSAs enjoy higher turn in rates than junction MSAs. I do not know what he would have required in order to conclude that evidence in this regard was "firm". My own expert view, as I made clear at the time of giving my oral evidence, was that the evidence I have described above did indeed firmly indicate that on-line MSAs enjoy higher turn-in rates."

121. I do not think that evidence demonstrates anything unlawful in the first inspector's conclusion in paragraph 14.8.11 of his report. The first inspector did not say there was no evidence to indicate that "on-line" sites have higher "turn-in" rates than others. And he did not say that Mr Plumb's "expert judgment" (as Mr Plumb himself describes it in paragraph 3.c. of his witness statement) was not "firm". What he said was that there was no "firm evidence" to "substantiate" the view he was being asked to accept – to prove that it was true. The weight he gave to the evidence before him and the conclusion he reached in the light of that evidence were for him, and not for the court in an application under section 288 of the 1990 Act, or for a witness giving evidence in such proceedings, no matter whether that witness is an expert or not.
122. In paragraph 3.6.5 of his report the first inspector summarized the evidence to which Mr Plumb refers in his witness statement:

"[Heather Ive Associates'] highway witness cited as examples the on-line MSAs at Clackett Lane and Warwick, which benefit from 10% daily turn-in rates, compared to the junction MSA at Cherwell Valley which has only 6% daily turn-in rates. [Jaytee (Rainton)]'s highway witness agreed in cross-examination that these were broadly representative examples of the different turn-in rates between on-line MSAs and junction MSAs, and accepted the proposition that "the further away from their route that a driver has to deviate to access a MSA, the less likely they are to stop"… . He also agreed that the higher turn-in rates an MSA has, the more effective it would be at reducing accidents. [Refined Estates'] highway witness agreed that in theory an on-line site has higher turn-in rates than an off-line site and as such it can serve a greater proportion of the travelling public. Indeed, even if [Heather Ive Associates'] turn-in rate were just 2% greater, applying that to a traffic flow of (say) 85,000 this would mean the drivers of an additional 1,700+ vehicles per day … (over 600,000 per year) would be stopping for a break and avoiding the onset of fatigue."

123. It is clear, therefore, that the first inspector was well aware of the relevant evidence. He cannot be said to have ignored it. But, in the absence of "definitive guidance on turn-in rates" and given the "broad range of observed rates at existing [motorway service areas]", he did not have to accept that the evidence before him was enough to prove, as a general rule, that "on-line" sites have higher "turn-in" rates than sites elsewhere. Different or further evidence might have proved this, but it was not up to the inspector to speculate about that.
124. So in my view there was no error on this point in the first inspector's report, and none in the Secretary of State's decision letter either.
125. Ms Barot also submitted that the first inspector failed to give sufficient reasons for his conclusion, and that the Secretary of State failed to address the matter at all, giving no reasons for either agreeing or disagreeing with the first inspector's conclusion.
126. I reject the first of those two submissions. Not only was the inspector plainly entitled to conclude as he did on "turn-in" rates, but he was also entitled to express his conclusion as crisply as he did. He said enough to make clear what he thought of the evidence presented to him in support of the suggestion that "on-line" sites have higher "turn-in" rates. He was sceptical, and he said so.
127. I also reject the second submission. The disagreement on "turn-in" rates was not a principal controversial issue before the Secretary of State. He did not have to grapple with the point in his decision letter. Reasonable succinctness in decision letters is a virtue, not a vice. The Secretary of State was obliged to express a finding or a conclusion on every matter on which the parties had failed to agree. Ms Barot argued that the point about turn-in rates went to the presumption in favour of "on-line" sites in paragraph 97 of Circular 01/08. But, as I have said, the Secretary of State did not neglect this policy. Would he have needed to change his conclusions if he had accepted that Mr Plumb's evidence on "turn-in" rates served to confirm the presumption? I do not believe he would. His reasons are sufficient.
128. In my view, therefore, this ground of Heather Ive Associates' application is untenable.

Issue (7): ground 4 of Jaytee (Rainton)'s application – failure to take into account a material consideration

Submissions

129. Mr Moules submitted:

(1) The Secretary of State failed to have regard to a point mentioned by the first inspector in his report (in paragraphs 14.1.83 to 14.1.88). Because the Motel Leeming site was only 12 miles from Barton, granting permission for a motorway service area there left open the possibility of another proposal for such a facility coming forward for a site within the gap of more than 27 miles between that site and the next such facility. The Secretary of State ought to have dealt with this in his decision letter.

(2) This was not a marginal point. It was relevant to the proper application of policy in Circular 01/08. Not only was there a risk of a proliferation of "infill" motorway service areas, but the very fact that there was such a risk showed that the Motel Leeming's proposal was not fit to meet the identified need.

130. Mr Buley and Mr Maurici submitted:

(1) There is no error of law here. The Secretary of State did not ignore a material consideration. The first inspector referred in paragraph 14.1.86 of his report to the possibility of another motorway service area being proposed to fill the gap of more than 27 miles if Motel Leeming's development went ahead. But, as the last sentence of paragraph 14.1.86 makes clear, this concern arose "especially in the case of Kirby Hill". Anyway, if another proposal did come forward it would have to be considered on its own merits.

(2) The Secretary of State cannot be criticized for saying nothing about this point in his decision letter. He had noted the possible advantages of a central site (in paragraph 38 of his letter). He did not have to mention every single point, however small, in his reasons.

131. Mr Fookes submitted:

(1) The Secretary of State was clearly fully aware of the disadvantages in the location of the Motel Leeming site (see paragraph 41 of his letter).

(2) At least until the motorway service area at Barton was open, the need for another facility would be at its most acute in the northern part of this section of the A1. There would have been no sense in siting a motorway service area somewhere else merely to pre-empt some later proposal for a site further south.

Discussion

132. I see no force in Mr Moules' argument on this ground. The submissions made by Mr Buley and Mr Maurici are in my view right.
133. The inspector's concern in paragraph 14.1.86 of his report seems to have been that if planning permission for either the Kirby Hill or the Motel Leeming proposal were given another developer might be able to persuade the local planning authority or the Secretary of State, sometime in the future, to grant planning permission for a development yet to be proposed, on a site yet to be identified, which would be harmful in some way but nonetheless justified by the strength of the residual need.
134. There are two answers to this. The first is that it is conjecture. And the second is that, in any event, a future proposal would have to be judged on its own planning merits. The planning merits would include the degree of need evident at the time, the ability of the proposed development to meet that need, the effects it would have on the local economy and the local environment, and so forth. The situation is similar, I think, to that in which a local planning authority is considering whether approving a particular development might make it harder to resist similar proposals that might not be acceptable. In such a case an objector generally has to do more than simply raise the spectre of precedent. He has to point to something more substantial. And it is sometimes said that a good decision to grant planning permission for one development does not make it more likely that a bad decision will be made in the future to grant permission for another.
135. If the first inspector was anxious about the possibility of unacceptable schemes being approved in the future, this did not show in his assessment of the relative planning merits of the competing proposals in section 14.8 of his report. The context in which this point came up, in paragraphs 14.1.83 to 14.1.88 of the report, was a discussion of the policy for the spacing of motorway service areas in Circular 01/08. And, as is clear from the last sentence of paragraph 14.1.86, the "environmental and local implications" feared by the first inspector arose "especially in the case of Kirby Hill", not Motel Leeming.
136. But in any event the Secretary of State did not adopt that part of the inspector's conclusions in his own analysis. He discussed the salient points of advantage and disadvantage for each proposal as he saw them, including the fact, which he acknowledged in paragraph 41 of his decision letter, that the Motel Leeming site "would be only slightly more than 12 miles from the potential MSA at Barton". He is not to be criticized for saying nothing about some hypothetical future proposal and its possible merits. What he had to do, and what he did, was to decide whether planning permission should be granted for any of the proposals that were actually before him, and, if so, for which. He did that, as he had to, by applying the relevant provisions of the development plan, and having regard to all material considerations, including government policy in Circular 01/08.
137. There is nothing in this ground of Jaytee (Rainton)'s application. I reject it.

Issue (8): ground 5 of Jaytee (Rainton)'s application and ground 4 of Refined Estates' – Wednesbury unreasonableness and inadequate reasons on the deliverability of the Motel Leeming development

Submissions

138. Mr Moules submitted:

(1) The Secretary of State's conclusion that Motel Leeming's development could be delivered quickly was not supported by the first inspector's conclusions. He also failed to take into account the fact that Motel Leeming's evidence on this question had not been tested. In paragraph 32 of his decision letter the Secretary of State said the Motel Leeming scheme "could be delivered quickly". This was a misunderstanding of the first inspector's conclusions. The first inspector had not said the Motel Leeming development could be delivered quickly; he had merely said there was no evidence that it could not be (paragraphs 14.6.36 and 14.6.53 of his report).

(2) The Secretary of State's conclusion, in paragraph 41 of his letter, that "work [on the Motel Leeming development] could start straight away", which clearly weighed heavily in his decision to approve that scheme, was an unreasonable conclusion, unsupported by evidence and inconsistent with the first inspector's findings. No proper reasons were given for it.

139. Mr Newberry submitted:

(1) The Secretary of State had accepted as "an important material consideration", the "speed and predictability of delivery" of a motorway service area on this stretch of the A1 (paragraph 40 of the decision letter). Mr Les had asserted, but had not demonstrated, that the Motel Leeming proposal was deliverable. Refined Estates had submitted evidence to show how it could construct its proposed development without delay (paragraph 5.14.5 of the first inspector's report). Its evidence was not challenged. The absence of such evidence in Motel Leeming's case was the more serious because the commercial viability of a facility so far from the motorway must have been more fragile.

(2) In the circumstances the Secretary of State could not lawfully conclude that the Motel Leeming proposal was deliverable and place substantial weight on that conclusion.

140. Mr Buley and Mr Maurici submitted:

(1) Evidence was given to the first inspector on behalf of Motel Leeming that funding was likely to be secured for its development if planning permission was granted. Each scheme faced obstacles to its implementation, as the first inspector acknowledged (see paragraphs 14.8.42 to 14.8.48 of the first inspector's report). He concluded that the Motel Leeming development would be "the most speedily deliverable" and that there were "question marks" over the ability of Heather Ive Associates and Jaytee (Rainton) to deliver theirs (paragraph 14.8.48).

(2) The Secretary of State's conclusions on the issue of deliverability were reasonable conclusions on the evidence the inspectors had been given. They are not legally flawed. The reasons given for those conclusions are lawful.

141. Mr Fookes submitted:

(1) At the inquiry Refined Estates had not questioned the availability of the land needed for a motorway service area to be developed on the Motel Leeming site. The only question was over the funding. On that question Motel Leeming provided relevant and sufficient evidence. Moto Hospitality has since agreed to buy the site, and intends to develop and operate the motorway service area for which planning permission has been granted. So if the Secretary of State now had to consider again whether the scheme was viable he would inevitably reach the same conclusion as he did before.

(2) Jaytee (Rainton) had doubted the commercial viability of the Motel Leeming development, and Motel Leeming had contended that the kind of operation it intended would be viable (see paragraph 6.12.5 of the first inspector's report). The first inspector accepted Motel Leeming's evidence in his conclusion on the deliverability of the Motel Leeming development, in paragraph 14.6.36 of his report. The Secretary of State was entitled to rely on that conclusion, and did.

Discussion

142. The burden of the submissions made by Mr Moules and Mr Newberry on these grounds was that there was no evidence on which the Secretary of State could reasonably conclude as he did on the deliverability of the Motel Leeming development.
143. I do not accept that.
144. In the evidence and submissions before the first inspector there were two parts to the issue of deliverability. The first part was about physical constraints on development and the prospect of the timely implementation of a planning permission; the second was viability. Before the inspectors the more contentious matter seems to have been the question of physical constraints. Viability was less controversial, if controversial at all. At any rate, neither the inspectors nor the Secretary of State found any of the proposals unviable, either in sense that the development could not be funded or in the sense that, once built, it might turn out to be commercially unsustainable. Neither the inspectors nor the Secretary of State distinguished between the proposals in this respect.
145. Motel Leeming's case, as recorded by the first inspector in paragraph 6.7.9 of his report, was that it "would be able to secure the funding to complete the upgrade of the site in accordance with the application proposals" if planning permission were granted, and that it was "confident that funding would be secured". This was the effect of written evidence given to the inquiry on behalf of Motel Leeming by a chartered town planner, Mr David Brocklehurst. In that evidence Mr Brocklehurst said (in paragraph 7.33) that if planning permission were granted Motel Leeming would be able to deliver the proposed motorway service area, and was "confident that funding would be secured." He went on to say (in paragraph 10.34), under the heading "Attractiveness of the Site to Operators":

"In respect to the attractiveness of the site to an MSA operator I do not agree with the view of [Refined Estates]. Notwithstanding that the site already exits, has operated since 1961 and requires only moderate expansion to become an MSA it is currently operated by the applicant who considers it to be commercially viable. The applicant will continue to operate the site like Tebay on the M6 which is very successful and is not owned or operated by a major operator. This had not impacted upon its commercial success or in its ability to attract customers. The applicant has a long standing customer base and … they have shown their commitment to continue to support and use the site notwithstanding the upgrade proposals for the A1(M) and the relocation of the access to it."

146. At the inquiry evidence about the deliverability of the Leeming Bar development was given on behalf of Jaytee (Rainton) by its planning witness, Mr Mark Lane. In his proof of evidence (in paragraph 9.141) Mr Lane said the Leeming Bar development was "relatively well advanced in terms of its layout and design" but there were "unresolved matters in relation to whether or not a suitable access could be achieved and serious question marks over the internal highways arrangements[,] … no agreed drainage solution as well as outstanding archaeological and sustainability considerations", which would "undoubtedly delay the delivery of the scheme and must put a question mark of over the ability of this proposal to satisfy the need." Mr Les says (in a footnote to paragraph 4.7 of his witness statement of 22 February 2013) that the matters referred to by Mr Lane "have subsequently been resolved; there had been no objections to the application by the Environment Agency or Yorkshire Water (in respect to drainage), and the internal layout was agreed with the [Highways Agency]". This has not been disputed by any of the claimants in these proceedings.
147. As Mr Moules pointed out, the first inspector acknowledged (in paragraph 4.10.1 of his report) Jaytee (Rainton)'s contention that "less weight" should be given to Motel Leeming's evidence and "greater weight" to its own because there had been no opportunity for Motel Leeming's to be tested by cross-examination.
148. The first inspector summarized the main points of Jaytee (Rainton)'s case against Motel Leeming's proposal as including the suggestion that "Leeming Bar is not likely to attract demand from [motorway service area] operators due to commercial viability" (paragraph 6.12.1 of his report). But he noted (in paragraph 6.12.5) that this point had been countered by Motel Leeming:

"… [Motel Leeming] disagrees with [Jaytee (Rainton)]. Notwithstanding that the site already exists, has operated since 1961 and requires only moderate expansion to become [a motorway service area] it is currently operated by the applicant who considers it to be commercially viable. The applicant will continue to operate the site like Tebay on the M6 which is very successful and is not owned or operated by a major operator. In addition, the site has a long-standing customer base."

149. The thrust of that rebuttal came through in the first inspector's conclusion on the deliverability of the Motel Leeming proposal in paragraph 14.6.36 of his report, where he said he had seen "no evidence that would indicate" that the Motel Leeming development "could not be delivered quickly".
150. In paragraph 5.14.5 of his report, in summarizing the case for Refined Estates on deliverability, the first inspector noted its assertion that it was "in funds to construct the proposal without delay" and that "[no] other scheme is in this position and no other scheme has shown it could deliver its proposal quickly or indeed at all". In paragraph 5.13.2 he referred to the contention that "[neither Heather Ive Associates] nor [Jaytee Rainton] have demonstrated deliverability from the financial standpoint". There is no mention there of Refined Estates having said Motel Leeming had failed in that way.
151. As I understand it, the evidence Motel Leeming gave to the first inspector on the viability of its own proposal was not directly challenged by Refined Estates at the inquiry. This was acknowledged by Refined Estates in its response to the Part 18 request made by Motel Leeming on 23 January 2013. The relevant request was this:

"Please identify in what evidence or submissions (written and/or oral) before the Inspector and Secretary of State [Refined Estates] advanced a case that challenged in any respect whatever the statement made in [Mr Brocklehurst's evidence at paragraph 7.33] as to the deliverability of Leeming Bar as an MSA. If there is none, confirm."

The answer was unequivocal: "There is none. …". The response went on to say that, because "no positive evidence" had been given by Motel Leeming on the viability and deliverability of its development, "unsurprisingly [Refined Estates] did not comment or question the absent evidence". It described Mr Brocklehurst's evidence as "simply an unevidenced assertion that Mr Les is confident funding would be secured". It said that, "[by] contrast", Refined Estates had "produced detailed evidence of the deliverability of its project".

152. Mr Newberry accepted that it was no part of Refined Estates' case at the inquiry to suggest there were any physical obstacles to the Motel Leeming development being delivered. As for Motel Leeming's ability to fund and deliver its development quickly, the only evidence is in a witness statement prepared for these proceedings by Mr Christopher Simkins, Refined Estates' planning consultant, dated 7 December 2012, in which (in paragraphs 47 to 55) he questions the first inspector's and the Secretary of State's conclusions on the ability of Motel Leeming to deliver its development quickly. That, however, was not evidence before the inspectors or the Secretary of State. And, as Mr Les has pointed out in his witness statement of 22 February 2013 (in paragraph 4.4), it seems hard to reconcile with the evidence Mr Simkins gave to the inquiry, which was that the Motel Leeming proposal "should have no fundamental implementation issues". Anyway, Mr Les has answered the concerns raised by Mr Simkins, in paragraphs 4.6 to 4.24 of his witness statement of 22 February 2013. And, as Mr Maurici and Mr Fookes said, the fact that the Motel Leeming development is not unattractive to operators is now put beyond doubt by Moto Hospitality having agreed heads of terms to purchase it.
153. Refined Estates' case on the deliverability of its own proposal was based the minute of a board meeting of Refined Estates' parent company, Refined Estates Ltd. MRH (GB) on 1 December 2010, in which it is recorded that a resolution was passed, confirming the parent company's willingness to fund the project "subject to a future and final specific investment appraisal" being undertaken.
154. The first inspector found that for each of the claimants' proposals there were doubts about the speed with which the development could be carried out (paragraphs 14.8.42 to 14.8.46 of his report). For Heather Ive Associates' proposal improvements would have to be made in the foul drainage system, and the timing of the necessary works was uncertain (paragraph 14.8.42); and it was not clear that the land needed for the proposed access had yet been obtained (paragraph 14.8.43). For the developments proposed by Jaytee (Rainton) and Refined Estates discussions with "non-motorised user groups" had not been concluded, though the first inspector did not see this as likely to cause any significant delay (paragraph 14.8.44). For Jaytee (Rainton) there was also the problem of having to obtain the "Potter land", which was needed for the access roundabout (paragraph 14.8.45). But there was no evidence to indicate that the Motel Leeming development could not be delivered quickly. The site was privately owned and was operating as a trunk road service area, and planning permission for its expansion had been granted (paragraph 14.6.36). This proposal appeared to "have no impediment to a speedy delivery if it were granted planning permission" (paragraph 14.8.47). The first inspector concluded that this would be "the most speedily deliverable" of the schemes before him, and that there were "question marks" over the ability of Heather Ive Associates and Jaytee (Rainton) to deliver theirs (paragraph 14.8.48).
155. In his conclusions in sub-section 5.5 of his supplementary report the second inspector considered the doubts raised by Refined Estates about the ability of Jaytee (Rainton) to carry out its development because of obstacles to its assembling the necessary land. He concluded (in paragraph 5.5.13) that "there would be likely to be considerable delays in implementation of the [Jaytee (Rainton)] scheme while the land-ownership issue is resolved".
156. The first inspector's conclusion that the Motel Leeming proposal would be "the most speedily deliverable" was, in my view, reasonable, and the reasons given for it were clear. The Secretary of State evidently agreed. In paragraphs 41 and 42 of his decision letter he said that work on the Motel Leeming development "could start straight away …", and that the scheme "could be brought on stream relatively quickly …". In paragraph 42 he repeated the second of those two conclusions, in similar words, saying that the development was "capable of being brought on stream quickly …".
157. In the light of the relevant evidence and submissions summarized by the first inspector in his report, I do not see how the Secretary of State's own conclusions on this matter can be said to be unlawful. They are not irrational. He gave the weight he thought was right to the ability of Motel Leeming to get on with its development once planning permission had been granted. That was up to him. As I said in the course of argument, it seems that tactical decisions were made by each of the applicants for planning permission about the way in which it would present its own case on deliverability and how it would challenge, or leave unchallenged, the assertions and evidence of others. Perhaps some of those decisions are now regretted, perhaps not.
158. The Secretary of State did not doubt the ability of Refined Estates to bring forward its development. But he was far from sure about Heather Ive Associates' proposal, and Jaytee (Rainton)'s. In paragraph 37 of his letter he mentioned the "likelihood of some delay in commencing work" on Heather Ive Associates' development – because of "the need to resolve the drainage issue". In paragraph 40 he referred to the "complex land-ownership issues which both [inspectors] identified as potentially leading to considerable delay" in the implementation of Jaytee (Rainton)'s. He went on to stress the importance of "speed and predictability of deliverabilty" as a material consideration in the decision he was making, because of the "established need for [a motorway service area]" (ibid.). I see nothing wrong with any of that.
159. Both the inspectors' conclusions and the Secretary of State's on the issue of deliverability were, in my view, wholly reasonable in the light of the evidence and argument before them, not only on the ability of each landowner to build its development and create the necessary access to it, but also on funding and commercial viability.
160. Once again, the allegation of irrationality is paired with the suggestion that the Secretary of State's reasons were obscure. And once again, I disagree. The Secretary of State clearly stated his view on the deliverability of the Motel Leeming proposal. There was no need for him to say any more than he did.
161. Had I come to a different view on the Secretary of State's reasons I would have exercised my discretion not to quash the decision. As is explained in the second witness statement of Mr Peter Dixon, dated 16 July 2013, and the letter from Mr Tony Raven, the Property Director of Moto Hospitality "to whom it may concern", dated 15 July 2013, Moto Hospitality have now agreed heads of terms for the purchase for the Motel Leeming site. So if the Secretary of State's decision were quashed for a lack of sufficient reasons on the deliverability and viability of Motel Leeming's development, and the case went back to him to be re-determined, I cannot see how he could now come to a different conclusion.
162. Both ground 5 of Jaytee (Rainton)'s application and ground 4 of Refined Estates' must therefore fail.

Issue (9): ground 2 of Heather Ive Associates' application – inadequacy of reasons on the need for drainage works at Kirby Hill

Submissions

163. Ms Barot submitted:

(1) Whereas the first inspector had concluded, in paragraph 14.3.67 of his report, only that there was a "possibility" of delay in developing the motorway service area proposed by Heather Ive Associates at Kirby Hill because of the need to undertake drainage works, the Secretary of State said in paragraph 37 of his decision letter that there was a "likelihood" of some delay. On any view, a mere possibility of delay is less significant than a likelihood.

(2) The Secretary of State gave no reasons for disagreeing with the first inspector about this. Heather Ive Associates have thus been caused substantial prejudice. This was evidently a finely balanced decision between the competing sites. Had the Secretary of State not exaggerated the chance of Heather Ive Associates' development being delayed, his decision might have been to approve that proposal and not Motel Leeming's.

(3) This ground can and should succeed for that reason alone. But when one adds any or all of the other considerations raised in the three applications before the court it is plain not only that the Secretary of State's decision could have been different, but that it would have been.

164. Mr Buley and Mr Maurici submitted:

(1) The difference between what the first inspector said in paragraph 14.3.67 of the first inspector's report and what the Secretary of State said in paragraph 37 of his decision letter is insignificant. Heather Ive Associates focus on the single word "possibility", in contradistinction to the word "likelihood". This is an excessively legalistic approach. There is no material difference between the first inspector's and the Secretary of State's conclusions on delay.

(2) The need for drainage works to be carried out was not the only potential obstacle to the implementation of Heather Ive Associates' development. Another was the need to acquire land whose ownership was in doubt, and to obtain any necessary further planning permission, before the proposed access on the south-bound side of the A1 could be constructed. The first inspector said this was "likely" to incur a delay (paragraphs 14.3.91 and 14.8.43 of his report).

(3) There is no attack on the Secretary of State's conclusions on the other shortcomings of Heather Ive Associates' proposal in paragraphs 21, 22 and 37 of the decision letter. Therefore, even if the Secretary of State was wrong to refer to a "likelihood" of the drainage works delaying the project – which is not conceded – his error was wholly immaterial.

165. Mr Fookes submitted:

(1) Moto Hospitality made submissions at the inquiry on the difficulties Heather Ive Associates would have in providing access to their development. The first inspector found it impossible to see "the way out of this legal impasse" (paragraph 14.3.68 of his report).

(2) In the circumstances the Secretary of State was fully justified in expressing his own doubts, in his own words, about the ability of Heather Ive Associates to develop a motorway service area on its site without undue delay.

Discussion

166. In my view a compelling answer to this ground is provided in the submissions of Mr Buley, Mr Maurici and Mr Fookes.
167. It was Heather Ive Associates' own case before the first inspector that if the Secretary of State concluded there was a need for a new motorway service area "any delay in meeting that need would delay the consequent safety benefits for the travelling public"; and that "[if] there are land ownership issues which might delay and/or frustrate the development of a proposal this should be given significant weight" (paragraph 3.7.23 of the first inspector's report).
168. Moto Hospitality argued at the inquiry that Heather Ive Associates would face a number of difficulties in providing access to its development. Heather Ive Associates disputed Moto Hospitality's suggestion that it lacked the necessary control of land (paragraph 3.7.26 of the first inspector's report).
169. Both this and the question of how long it would take for the drainage works to be completed were left unresolved at the end of the inquiry. In paragraphs 14.3.67 to 14.3.69 of his report, when dealing with the deliverability of Heather Ive Associates' proposal, the first inspector said:

"14.3.67 [Yorkshire Water] indicates that there is no reason why, providing the funding and necessary infrastructure is in place, foul water cannot be disposed of by way of the public sewer network connecting to Boroughbridge WWTW. What is not clear is how long provision of those off-site works would take. There is the possibility that such provision could delay the implementation of an MSA at Kirby Hill. …

14.3.68 It has been indicated that the application/appeal site boundary does not include all the land necessary to enable the access proposals to be achieved on the southbound MSA. [Moto Hospitality] says that there is doubt whether the land is Crown land, in [North Yorkshire's] ownership, or in some other ownership. As to the last mentioned, no ransom-holder has been revealed in the 14 years that [Heather Ive Associates] has promoted this site for an MSA; it is likely that the land resides with the [Highways Agency] or [North Yorkshire]. [Moto Hospitality] also says that the southbound site should be considered as landlocked and incapable of being delivered in its current form. [Moto Hospitality] and [Heather Ive Associates] dispute as to whether the work could or could not be carried out under The Town and Country Planning (General Permitted Development) Order 1995 Schedule 2 Part 13. I cannot indicate the way out of this legal impasse, but the SSCLG could no doubt pursue the matter if required. … .

14.3.69 Whatever the outcome, it appears to me that there is a requirement for an application for planning permission to be made before development can take place on Crown land. If permission were to be granted to the HIA scheme, any necessary further permission for work on HA/NYCC land is likely to incur a delay."

170. The first inspector returned to these matters at paragraphs 14.3.90 and 14.3.91 of his report, referring again (in paragraph 14.3.90) to the "possibility" that the need to dispose of foul water through the public sewer network "could delay" the development, and concluding (in paragraph 14.3.91) that if it were necessary for any further permission to be granted for work on Highways Agency or North Yorkshire land a delay was "likely". These conclusions were repeated in his comparison of the proposals in paragraphs 14.8.42 and 14.8.43 of his report.
171. The complaint here is simple. It is about the Secretary of State's use of the word "likelihood" rather than the word "possibility" in paragraph 37 of his decision letter when dealing with the risk of "some delay in commencing work" because of "the need to resolve the drainage issue" at Kirby Hill. The need for the drainage works to be undertaken is, as I understand it, not in dispute. But does the difference between the inspector's word and the Secretary of State's vitiate the decision in the absence of some explanation by the Secretary of State for expressing his conclusion in the way he did?
172. I think not. The Secretary of State was reflecting, in his own language, his conclusion on the deliverability of the Kirby Hill development. His meaning was clear, and his conclusion reasonable.
173. This issue, like so much else in these proceedings, was a matter of judgment for the Secretary of State. Even if the word "likelihood" connotes something more than a "possibility", which I doubt, it merely expresses the opinion of the Secretary of State on the level of risk. It makes sense in its context, and, given the first inspector's conclusions, it is hardly surprising. It does not necessarily mean anything more probable than the word "possibility" would have meant had the Secretary of State said that. The two words can be used interchangeably, and often are. A possibility can be a likelihood, and a likelihood is always a possibility. In the recent decision of the Supreme Court in R. (Sturnham) v Parole Board [2013] UKSC 47, Lord Mance said this, albeit in a quite different context, in paragraph 17 of his judgment:

"The reference in Hodgson to future offending being "likely" was read in a mathematical sense of "more probable than not" by counsel for the appellant and it seems the Divisional Court in R v Parole Board, ex Bradley [1991] 1 WLR 134 … . But "likely" is a word of open meaning, and I regard any attempt to state or apply a test of mathematical probability in this context as inappropriate. …".

174. I do not think this ground gets beyond semantics. And semantics alone is not enough to undo a planning decision. The judgment of Sir Thomas Bingham M.R., as he then was, in Clarke Homes (at pp.271 and 272) is cautionary. He said:

"… 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."

175. As Mr Fookes said, the need for drainage works was not the only problem. There was also the question of landownership. The first inspector did not try to resolve that question. He left it to the Secretary of State. And the second inspector did not touch it. The point was the subject of post-inquiry representations submitted on behalf of Moto Hospitality and on behalf of Heather Ive Associates (both on 13 March 2012) with a response on behalf of Moto Hospitality on 30 March 2012. The matter seems to have been left undecided by the Secretary of State. That is not a criticism of him, or of his decision. Even if he had concluded that there was no obstacle in landownership to Heather Ive Associates' development coming forward, this would have made no difference to his assessment of the relative merits of the four proposals.
176. If the Secretary of State was wrong to refer to a "likelihood" of the drainage works delaying Heather Ive Associates' project – which I do not accept – his error was, in my view, immaterial. In paragraphs 21, 22 and 37 of his decision letter he identified several serious objections to Heather Ive Associates' proposal: that the development would have "a significant detrimental effect on the character and appearance of the surrounding landscape" (paragraph 21); that it would conflict with the development plan (paragraph 22); and that "it would have the greatest visual, environmental and heritage impacts as well as the greatest take of [best and most versatile agricultural] land" (paragraph 37). Those conclusions are not challenged in these proceedings. And they could not be.
177. I therefore reject this ground of Heather Ive Associates' application.

Conclusion

178. For the reasons I have given all three applications must be dismissed.