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
		11/04/2013

Mrs Justice Lang DBE:

1. In this claim under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990"), the Claimant applies to quash the decision of the Secretary of State for Communities and Local Government ("the Secretary of State") dated 26th May 2011. In that decision, the Secretary of State agreed with the conclusions of his Inspector, Mr G. Cundale, contained in a report written on 30th March 2011, following an inquiry, and dismissed the appeal brought by the Claimant against the refusal of Wokingham Borough Council ("the Council") to grant permission for residential (and associated) development on land at Shinfield Glebe, Church Lane, Shinfield, Berkshire ("the Site").

Law

2. Section 288 of the 1990 Act provides, so far as is material, that:

"(1)      If any person -

…
(b) is aggrieved by any action on the part of the Secretary of

State to which this section applies and wishes to question the validity of that action on the grounds –

(i)     that the action is not within the powers of the Act,

or

(ii) that any of the relevant requirements have not been complied with in relation to that action,

he may make an application to the High Court under this section. …

(3) An application under this section must be made within six weeks from … the date on which the action is taken.

(4) This section applies … to any such action on the part of the Secretary of State as is mentioned in subsection (3) of … section [284 of the 1990 Act]."

(5) On any application under this section the High Court—

(a) may, subject to subsection (6) , by interim order suspend the operation of the order or action, the validity of which is questioned by the application, until the final determination of the proceedings;

(b) if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action."

3. The scope of challenge under section 288 is wide, and the general principles of judicial review are applicable. As Forbes J. said in Seddon Properties v Secretary of State for the Environment (1978) 42 P &CR 26:

"(1) The Secretary of State must not act perversely. That is, if the court considers that no reasonable person in the position of the Secretary of State, properly directing himself on the relevant material, could have reached the conclusion which he did reach, the decision may be overturned. See, e.g.  Ashbridge Investments Ltd v. Minister of Housing and Local Government [1965] 1 W.L.R. 1320, per  Lord Denning M.R. at 1326F and Harman L.J. at 1328H. This is really no more than another example of the principle enshrined in a sentence from the judgment of Lord Greene M.R. in Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223 at 230:"

'It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere.'

(2) In reaching his conclusion the Secretary of State must not take into account irrelevant material or fail to take into account that which is relevant: see, e.g.  again the Ashbridge Investments case, per  Lord Denning M.R. loc. cit. 

(3) The Secretary of State must abide by the statutory procedures, in particular by the Town and Country Planning (Inquiries Procedure) Rules 1974 [see now the 2000 Rules]. These Rules require him to give reasons for his decision after a planning inquiry r.18 and those reasons must be proper and adequate reasons which are clear and intelligible, and deal with the substantial points which have been raised: Re Poyser and Mills Arbitration [1964] 2 Q.B. 467.

(4) The Secretary of State, in exercising his powers, which include reaching a decision such as that in this case, must not depart from the principles of natural justice: per Lord Russell of Killowen in Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 W.L.R. 1255 at 1263D.

(5) If the Secretary of State differs from his inspector on a finding of fact or takes into account any new evidence or matter of fact not canvassed at the inquiry he must, if this involves disagreeing with the inspector's recommendations, notify the parties and give them at least an opportunity of making further representations: r.17 of the Inquiries Procedure Rules [2000]."

4. Section 288(1)(b)(ii) relates to procedural requirements, and is qualified by the requirement that the applicant should show that he has been substantially prejudiced by the failure to comply with the provisions (subs.(5)(b) ). There is some degree of overlap between the limbs of the statutory formula. In such cases challenge may be brought equally under either limb, "for it is to be implied, unless the contrary appears, that Parliament does not authorise by the Act the exercise of powers in breach of the principles of natural justice, and that Parliament does by the Act require, in the particular procedures, compliance with those principles" (Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 W.L.R. 1255 at 1263, per  Lord Russell). Also the procedural requirements of the Rules are not exhaustive in that further safeguards may be found in the rules of natural justice (see, e.g. Performance Cars Ltd v Secretary of State for the Environment (1977) 34 P. & C.R. 92).
5. The exercise of planning judgment and the weighing of the various issues are entirely matters for that decision-maker and not for the Court: Seddon Properties v Secretary of State for the Environment (1981) 42 P & CR 26, at 28 and Tesco v Secretary of State for the Environment [1995] 1 W1.R 759, at 780. In the latter case Lord Hoffmann said "If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State".
6. In Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74 (a case concerning a challenge to a planning inspector's decision) Sullivan J. said at [6] – [8]:

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

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

Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task ..."

7. In Tesco Stores v. Secretary of State for the Environment & Ors [1995] 1 WLR 759, Lord Hoffmann said, at 780F-H, that the weight to be given to a material consideration was a question of planning judgment for the planning authority.
8. In Tesco Stores Limited v Dundee City Council [2012] UKSC 13, Lord Reed (with whose judgment Lord Brown, Lord Hope, Lord Kerr and Lord Dyson agreed) said, at [17]:

"It has long been established that a planning authority must proceed upon a proper understanding of the development plan: see, for example, Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P & CR 86, 94 per Woolf J, affd (1986) 54 P & CR 361; Horsham DC v Secretary of State for the Environment (1991) 63 P & CR 2319, 225-226 per Nolan LJ. The need for a proper understanding follows, in the first place, from the fact that the planning authority is required by statute to have regard to the provisions of the development plan: it cannot have regard to the provisions of the plan if it fails to understand them. It also follows from the legal status given to the development plan by section 25 of the 1997 Act. The effect of the predecessor of section 25, namely section 18Aof the Town and Country (Planning) Scotland Act 1972 (as inserted by section 58 of the Planning and Compensation Act 1991), was considered by the House of Lords in the case of City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, [1997] 1 WLR 1447. It is sufficient for present purposes to cite a passage from the speech of Lord Clyde, with whom the other members of the House expressed their agreement. At p.44, 1459, his lordship observed:

"In the practical application of sec. 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it."

9. Lord Reed rejected the proposition that each planning authority was entitled to determine the meaning of development plans from time to time as it pleased, within the limits of rationality. He said, at [18], that development plans should be "interpreted objectively in accordance with the language used, read in its proper context". They are intended to guide the decisions of planning authorities, who should only depart from them for good reason.
10. Lord Reed re-affirmed well-established principles on the requirement for the planning authority to make an exercise of judgment, particularly where planning policies are in conflict, saying at [19]:

"That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. 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 659, 780 per Lord Hoffmann)."

11. An Inspector's decision letter must be read (1) fairly and in good faith, and as a whole; (2) in a straightforward down-to-earth manner, without excessive legalism or criticism; (3) as if by a well informed reader who understands the principal controversial issues in the case: see Lord Bridge in South Lakeland v Secretary of State for the Environment [1992] 2 AC 141, at 148G-H; Sir Thomas Bingham MR in Clarke Homes v Secretary of State for the Environment (1993) 66 P & CR 263, at 271; Seddon Properties v Secretary of State for the Environment (1981) 42 P & CR 26, at 28; and South Somerset District Council v Secretary of State for the Environment (1993) 66 P & CR 83.
12. Two citations from the authorities listed above are of particular relevance to the disputed issues in this case.

a) South Somerset District Council, per Hoffmann LJ at 84:

"...as Forbes J. said in City of Westminster v Haymarket Publishing Ltd:

"It is no part of the court's duty to subject the decision maker to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute. Because the letter is addressed to parties who are well aware of all the issues involved and of the arguments deployed at the inquiry it is not necessary to rehearse every argument relating to each matter in every paragraph"

The inspector is not writing an examination paper on current and draft development plans. The letter must be read in good faith and references to policies must be taken in the context of the general thrust of the inspector's reasoning ... Sometimes his statement of the policy may be elliptical but this does not necessarily show misunderstanding. One must look at what the inspector thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood a relevant policy or proposed alteration to policy."

b) Clarke Homes, per Sir Thomas Bingham MR at 271-2:

"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."

13. A decision-maker is required to give adequate reasons for his decision. The relevant principles were set out by Lord Brown in South Bucks District Council and another v Porter (No 2) [2004] 1 WLR 1953:

36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

Local planning policies

14. On 16th February 2010, the Claimant applied for planning permission for a residential development of up to 175 dwellings, with associated play space, landscaping and access.
15. The Site adjoined the north western edge of the village of Shinfield which is located to the south of Reading and the M4 motorway. It was about 9.9 ha in area and comprised 5 fields, bounded by a mixture of hedgerows and mature trees, and occupied the north-west slope of a ridge.
16. The development plan included the Wokingham Borough Core Strategy adopted in January 2010. It applied to the period 2006-2026. The Core Strategy's spatial vision was based on locating the majority of new housing in high quality Strategic Development Locations with a good transport system, increased non-car transport and excellent infrastructure provision, while protecting the character of the Borough.
17. The Site occupied a minor part of the South of the M4 Strategic Development Location (SM4 SDL), which adjoined the three settlements of Shinfield, Spencers Wood and Three Mile Cross. Here, policy CP19 provided for the phased delivery of around 2500 dwellings, together with various other development and measures. That development would itself occupy only a limited part of the SDL - about 77 ha would be allocated for residential use. Measures were required to:

a) maintain visual and physical separation between settlements (CP19(5)]; and

b) improve accessibility by non-car transport modes (CP19(8)).

18. Policy CP19 also stated that development would be guided by a 'Development Brief Supplementary Planning Document' and that a co-ordinated approach to development would be required to deliver the necessary infrastructure. Appendix 7 set out additional guidance for the development of each Strategic Development Location. It indicated that new growth should be focused around the three existing settlements, including Shinfield. Policy CP17 provided for the delivery of the required housing and the maintenance of a rolling 5-year supply of housing land.
19. Policy CP4 required 'appropriate arrangements' for the improvement and provision of infrastructure, to be secured by planning obligations or conditions. Policy CP3 listed the general principles for development, and policy CP1 listed the requirements for sustainable development. Policy CP6 set out transport requirements, including provision for sustainable forms of transport to allow choice.
20. Saved policies of the Wokingham District Local Plan 1996-2006 (adopted in March 2004) were also part of the development plan. Policy WLL4 required new development to respect the landscape character of the area.
21. At the date of the Report, the South of the M4 Strategic Development Location Supplementary Planning Document (SM4 SPD) was still in draft form for consultation. It had been amended in October 2010 to show a reduced suitable residential area to the west of Shinfield and a larger such area to the east of Shinfield. The Site was not located within an identified "suitable residential area"; it was in a 'potential green open space'.
22. The Infrastructure Delivery and Contributions Supplementary Planning Document ("Infrastructure SPD") was adopted in October 2010 and set out the necessary infrastructure, phasing, funding and planning obligations/ contributions to provide for sustainable development.

Ground 1: The Secretary of State's failure to consider the Ministerial Statement

23. On 23^rd March 2011, Mr. Greg Clark MP, Minister of State for Decentralisation, issued the Ministerial Statement 'Planning for Growth'. It referred to the Chancellor of the Exchequer's call for action on growth, to re-build Britain's economy, saying that the "planning system has a key role to play in this, by ensuring that the sustainable development needed to support economic growth is able to proceed as easily as possible". It stated:

"The Government's top priority in reforming the planning system is to promote sustainable economic growth and jobs. Government's clear expectation is that the answer to development and growth should wherever possible be 'yes', except where this would compromise the key sustainable development principles set out in national planning policy.

The Chancellor has today set out further detail on our commitment to introduce a strong presumption in favour of sustainable development in the forthcoming National Planning Policy Framework, which will expect local planning authorities to plan positively for new development; to deal promptly and favourably with applications that comply with up-to-date plans and national planning policies; and wherever possible to approve applications where plans are absent, out of date, silent or indeterminate.

Local authorities should therefore press ahead without delay in preparing up-to-date development plans ..

When deciding whether to grant planning permission, local planning authorities should support enterprise and facilitate housing, economic and other forms of sustainable development. Where relevant - and consistent with their statutory obligations - they should therefore:

(ii) take into account the need to maintain a flexible and responsive supply of land for key sectors, including housing....."

24. It is important to note that the Statement concluded:

"The Secretary of State for Communities and Local Government will take the principles in this statement into account when determining applications that come before him for decision. In particular, he will attach significant weight to the need to secure economic growth and employment." (emphasis added)

25. In this case, on 25^th August 2010, the Secretary of State directed that he would determine the appeal because it involved proposals for residential development of over 150 units, or on sites of over 5 ha, which would significantly impact on the Government's objective to secure a better balance between housing demand and supply and create high quality, sustainable, mixed and inclusive communities (Secretary of State's Decision Letter).
26. The Inspector's Inquiry began on 10^th November and closed on 2^nd March 2011. The Inspector's Report was dated 30^th March 2011. It was common ground that, in accordance with usual practice, the Inspector did not, and should not, have taken into account the Ministerial Statement since it was issued after the close of the Inquiry. The Claimant's advisers sent representations to the Secretary of State but made no mention of the Ministerial Statement.
27. However, the Claimant submits that the Ministerial Statement should have been, but was not, taken into account by the Secretary of State when he made his decision on 28^th May 2011, some 2 months after the Ministerial Statement had been issued.
28. I accept the Claimant's submission that it is apparent from a proper reading of the Secretary of State's Decision Letter that the Ministerial Statement was not taken into account. The letter is carefully drafted so as to include express reference to every local and national planning policy document, as well as legislative provisions. It reads as if it follows a template in which these provisions are set out. By way of contrast, the Claimant referred me to other decision letters made by the Secretary of State in January and June 2012, which adopt a similar approach, but make clear reference to the Ministerial Statement, acknowledging it to be a "material consideration".
29. I accept that a failure to refer to a particular document does not necessarily mean that the decision-maker has failed to have regard to it. However, since this Decision Letter carefully recites every relevant provision, save for the one in question, and other letters from the same decision-maker do refer to the Ministerial Statement, I am forced to conclude, on the balance of probabilities, that the Ministerial Statement was overlooked by the civil servant who had responsibility for drafting this particular Decision Letter. Regrettably the error was not identified when it was checked and signed on behalf of the Secretary of State. A possible explanation for this error is that it was not referred to in the Inspector's Report, and as it was relatively new, the author had not yet been alerted to the necessity to consider and refer to it, whether by way of checklist, or template, I do not know.
30. Although I accept Ms Sheikh's submission that, as a mere Ministerial Statement, it was low in the hierarchy compared with statutory provisions and national planning policies, it had potential relevance to housing development, and it was a "material consideration". By section s.38(6) of the Planning and Compulsory Purchase Act 2004, determinations must be made in accordance with the development plan "unless material considerations indicate otherwise". The decision maker does not perform this duty properly unless he has regard to all the material considerations.
31. This was not a case that fell within the principle established by Glidewell LJ in Bolton MBC v Secretary of State for the Environment 61 P. & C.R. 343, to the effect that a decision-maker was entitled to disregard it because it was so trivial that it did not affect the decision. It was not trivial and I cannot rule out the possibility that it could have made a difference.
32. I do not accept Mr Forsdick's submission that the Secretary of State was not required to take the Statement into account because it did not apply to this case, as the Inspector had found the development was not sustainable, applying an up-to-date development plan. In my judgment, all decision-makers were required to have regard to it, as the Statement itself indicates, and then to decide whether and to what extent it affected the decision to be made, on the facts of the particular planning application. Once having had regard to the Statement, it was open to the Secretary of State to conclude that the Statement had no bearing on the decision in this particular case, because the Inspector had found the development was not sustainable, applying an up-to-date development plan.
33. For the reasons set out above, the Claimant succeeds on this ground.

Ground 2: The Secretary of State's approach to the draft "South of the M4 Supplementary Planning Document"and the "Infrastructure Delivery and Contributions Supplementary Planning Document

34. The Claimant submitted that the Secretary of State erred in law by having regard to the draft SM4 SPD and the adopted Infrastructure SPD.
35. The Claimant submitted that the draft SM4 SPD sought to allocate sites for housing in breach of the Secretary of State's policy that such allocation should take place under a development plan. The Claimant also submitted that both documents had been progressed in breach of EU law because of the lack of an Environmental Report, in accordance with the SEA Directive 2001/42/EC and the Environmental Assessment of Plans and Programmes Regulations 2004. As an emanation of the state, the Secretary of State was required to ensure compliance with EU law by determining that the documents were in breach of EU law and disregarding them. The only appropriate remedy was to quash the decision: see Berkeley v Secretary of State for the Environment [2001] 2 AC 603.
36. The Claimant, in its submissions to the Inspector and Secretary of State, and to this court, relied primarily upon the judicial review claim brought by the southern parishes of the Borough to quash the adopted Infrastructure SPD and to declare the unlawfulness of the draft SM4 SPD and related processes. In its Acknowledgment of Service and summary grounds, the Council resisted the claim but indicated that if permission was granted, it would agree, inter alia, to obtain an environmental report for the draft SM4 SPD to avoid delay in the planning process.
37. By the time of the Secretary of State's decision, permission to apply for judicial review had been granted, on the basis that the grounds were arguable. However, the claim was settled without any final resolution of the disputed issues. The Council did not in fact take the steps outlined in paragraphs 66 and 67 of its Summary Grounds, despite the indication in its grounds that it would be willing to do so, for pragmatic reasons.
38. The Claimant was not itself a party to any legal challenge to the Infrastructure SPD and it did not contend that the Inquiry had to be adjourned until its status had been determined through the Courts. At the Inquiry, it merely sought to rely upon the pending judicial review in support of its argument that these SPDs should be given little or no weight.
39. The Inspector reached the following conclusions in his Report:

"11.6 Paragraph 3.19(c) of the Core Strategy indicates that planning permission should not be granted until a 'Development Brief' SPD for the SDL has been adopted [5.1]. This is not a requirement of policy CP19, but I can see that it would help to ensure the coordinated approach to the development of the SDL that is explicitly sought in the policy [3.3]. The appeal scheme is not consistent with paragraph 3.19(c), and to this extent it could be said to be premature.

11.7 However, being premature in this sense does not in itself justify the refusal of planning permission. Having regard to Government guidance in 'The Planning System: General Principles' there is no emerging DPD that would be prejudiced, and in any event I do not see the scheme as being so substantial or having such cumulative effect as to prejudice the process of making decisions on the scale, location or phasing of new development [4.8-9].

11.8 The SM4 SPD is in draft form and the outcome of the public consultation is not known [4.7]. However, it is known that there are objections to the changes in the identified areas suitable for residential development, and as a result there could possibly be changes in those areas [4.3, 4.7]. Because sufficient land needs to be identified such changes could conceivably affect the appeal site, and so I give only limited weight to the fact that the current draft SM4 SPD does not identify the appeal site [5.3]. I cannot say that changes are now less likely, and I do not accept the view that the non-identification of the appeal site again in the current draft of the SPD means that the non-identification carries significantly more weight than it did in the first draft [6.2].

11.9 The outcome of the legal challenge concerning the SM4 SPD is uncertain and that factor also limits the weight I attach to that SPD in this appeal [4.3, 7.5]. Having been adopted, the ID SPD carries substantial weight in my assessment, although again this takes account of the legal challenge [3.6-7].

11.10 I am not convinced that the SDL must be considered to be a "strategic site" in terms of PPS12(4.6). It is not described as that in the Core Strategy (including its Glossary) and was not claimed to be such by the Council's witnesses [4.4, 5.2, 6.11]. Strategic sites are "for development" and clearly only a limited part of the SM4 SDL will be developed [4.3-4]. Therefore the development land still remains to be identified after adoption of the Core Strategy. It is not just a question of more precise definition. Accordingly, regard to PPS12(4.6) does not cause me to give greater weight to the emerging SM4 SPD."

40. The Secretary of State said, in his decision letter:

"10. The Secretary of State has taken into account as a material consideration the supplementary planning documents (SPDs) listed at IR3.6 and 3.8, and has further taken into account the legal challenge being pursued by the southern parishes of the Borough to quash the adopted ID SPD and to declare the unlawfulness of the draft SM4 SPD and related processes (IR3.7). For the reasons given at IR11.8 – 11.10, the Secretary of State considers that the SM4 has limited weight. He agrees with the Inspector at IR11.9 that notwithstanding the legal challenge to the ID SPD, it has substantial weight. He has taken into account the representations made following the close of inquiry (as set out in Annex A) but they do not alter the weight he ascribes to these documents."

41. In my judgment, the approach adopted by the Inspector and the Secretary of State cannot be successfully impugned as unlawful.
42. In relation to the Infrastructure SPD, the Inspector and the Secretary of State were required to have regard to it because it was a material consideration in the determination of the appeal. The Council had adopted it in October 2010, and so it was a statutory document: reg 2(1) and Part 5 of the Town and Country Planning (Local Development) (England) Regulations 2004. In accordance with general public law principles, it was valid until quashed. It is true that it was under challenge at the time of the decision but it had not been quashed, and indeed never has been. The Council did not concede the legal challenge to its validity, as its summary grounds demonstrate.
43. The issue of how much weight should be given to the Infrastructure SPD was indisputably a matter for the decision-maker. The weight to be given to a material consideration is a question of planning judgment for the planning authority: see Lord Hoffmann, in Tesco Stores v. Secretary of State for the Environment & Ors [1995] 1 WLR 759, at 780F-H.
44. In relation to the draft SM4 SPD, this was an emerging policy which had not yet been adopted. It had been subject to two rounds of public consultation and was in the final stages of adoption. It was directly relevant as it covered the Shinfield area, and the Site in question. In accordance with well-established principles relating to emerging policies, the Inspector and the Secretary of State were entitled to give this document as much weight as they considered appropriate. Although it was the subject of a legal challenge by other parties, there was no concluded decision that the process followed to date had been unlawful. In my view, their conclusion that it should be given limited weight, because it might be altered before adoption, and because of the pending legal challenge, was a legitimate exercise of judgment.
45. As Ms Sheikh said, in her cogent submissions, even if there had been a breach of mandatory EU rules (which had not been established), it did not follow that no weight should be given to a public document which had been adopted or to a draft emerging document. The decision in Berkeley v Secretary of State for the Environment [2001] 2 AC 603, relied upon by the Claimant, has been analysed and explained very recently by the Supreme Court in Walton v The Scottish Ministers [2012] UKSC 44. Walton makes it clear that the fact there is a breach of a European directive does not mean that the court is deprived of the discretion which it would have at common law, having considered the merits and assessed where the balance is to be struck, to refuse to give effect to the objection.
46. For these reasons, the Claimant's challenge on this ground fails.

Ground 3: The Community Infrastructure Levy Regulations 2010

47. The Claimant submitted that the Secretary of State and the Inspector had failed to apply the Community Infrastructure Levy Regulations 2010 ("CIL Regulations"). In summary, the CIL Regulations made it unlawful for a planning obligation to be taken into account when determining a planning application, if it did not meet all of the following tests:

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

b) it was directly related to the development; and

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

48. The Claimant contended that the Inspector, having found that the proposed contributions were reasonable, then wrongly concluded that there was "a limited risk of shortfall sufficient to compromise the comprehensive provision of the infrastructure necessary to support the wider development of the [Strategic Development Location]" (paragraph 11.19 of the Report). This conclusion led the Inspector to his overall conclusion that the planning merits of the scheme were flawed. The Claimant argued that the Secretary of State fell into error by adopting the Inspector's reasoning.
49. The relevant passages in the Inspector's report were as follows:

"11.13 Because the provision of infrastructure for the SDL will be dependent on other developers, and especially the SM4 Consortium, it does not seem realistic to expect the appellant to produce an "overarching infrastructure outline planning application". Paragraph 6.4 of the ID SPD does allow for the alternative of "another relevant mechanism" to be used, but it also appears to require an individual scheme to provide an infrastructure delivery plan for the whole SDL [4.10, 5.8]. This would not presently be realistic in the case of the appeal scheme, which is outside the SM4 Consortium and is only a small part of the development planned in the SDL [4.9].

11.14 The ID SPD recognises that there may be non-Consortium development in the SDL, and as far as I can see it does not restrict that development to a later phase of SDL development [4.11, 6.14]. In the circumstances, and with no infrastructure delivery plan in place for the whole SDL, the appeal scheme relies on direct provision and on financial contributions (via the unilateral undertaking) where off-site provision is necessary. This is reasonable and in keeping with "appropriate arrangements" required by Core Strategy policy CP4 and with the ID SPD [3.4, 4.12].

11.15 The contributions take account of the cost figures in the ID SPD and the best information available [4.12]. Given that the SDL development has yet to get started the contributions at this stage would, it seems to me, be helpful to the process of infrastructure provision. I can see that they could be prejudicial if significantly short of the required amounts, but it is not clearly evident to me that they are [4.12]. That said, it does appear likely that there would be some shortfall as some of the cost figures in the ID SPD do not take account of certain costs such as land acquisition, environmental mitigation, design and consent [5.9].

11.16 While it would be preferable for all the detailed up to date costings to be complete and timing of the SDL's infrastructure provision to be agreed in a firm delivery plan before planning permissions are granted, this needs to be balanced against the need to make progress with development of the SDL. Some of the infrastructure might not be provided before completion of the appeal development; but to the extent that this could not be addressed by planning conditions I am not convinced that it would cause significant harm.

11.17 At the inquiry there was particular concern about the adequacy of the contribution to the Eastern Relief Road, including the crossing of the M4 [5.9, 6.12-15]. Having regard to Core Strategy paragraph A7.17(d) and the ID SPD I have no good reason to doubt that a contribution is required from the appeal development, even though a greater amount of SDL development could be allowed in advance of the completion of the road [4.12, 4.20, 5.9]. Apart from the likely shortfall referred to above, the contribution proposed appears to be proportionate, given the contributions that it is reasonable to expect from other development, including the Arborfield Garrison SDL [4.12-14, 6.15, 10.21-23].

11.18 That said, the degree of uncertainty in the infrastructure costings is such that there would be a risk that the delivery of SDL infrastructure would be affected were the appeal scheme contributions to turn out to be short of requirements [5.9, 6.13]. In my judgment that risk would be limited.

11.19 In conclusion, the appeal scheme is not well coordinated with other development in the SDL, and in this respect I do not find that it is compliant with Core Strategy policy CP19. Its prematurity should take account of its relatively minor part in SDL development. It makes necessary and reasonable provision, but with a limited risk of a shortfall sufficient to compromise the comprehensive provision of the infrastructure necessary to support the wider development of the SDL."

50. The Inspector went on to find against the appeal scheme on the following ground (among others):

"11.56 First, the scheme does not follow the coordinated approach to the development of the SDL, as required by Core Strategy policy CP19. As a result there is a limited risk of setting back the plans to deliver strategic infrastructure, especially the Eastern Relief Road, upon which the development of the SDL depends. Such a set-back could possibly have repercussions on other development in the SDL."

51. The Secretary of State agreed with the Inspector's conclusions, in paragraphs 14, 24 and 25 of the decision letter. He observed in paragraph 24 that he was satisfied that the obligation complied with the CIL Regulations.
52. I accept the submissions of Mr Forsdick and Ms Sheikh on this issue. CP19 showed that a co-ordinated approach to the development of the SDL and in particular its infrastructure was required. In paragraph 11.17 of the Inspector's report, he referred to the relevant sections of the Core Strategy, and the need for a contribution to the Eastern Relief Road. In considering the planning merits, the Inspector and the Secretary of State were entitled, and indeed required, to consider to what extent the proposal would accord with that requirement. They were entitled to reach the conclusion that there was a limited risk of a shortfall in provision from this site which compromised the comprehensive provision of the infrastructure necessary to support the wider development of the SDL. That was a planning judgment for the Secretary of State to make and cannot be challenged in this court.
53. I accept the submission of Mr Forsdick that the Claimant's submission confused the content of a section 106 TCPA 1990 obligation and the planning consequences of any risk of any "shortfall" in provision. The fact the section 106 "offer" complied with the CIL Regulations did not determine whether more was required in this particular case.
54. For these reasons, the Claimant's challenge on this ground fails.

Ground 4: The Bus Service

55. The Claimant criticised the Inspector's approach to the issue of the bus service to the Site, submitting that the Inspector:

a) applied the criminal standard of proof in assessing the quality of the service;

b) failed to identify sufficient reasons and evidence for his conclusions about the viability of the bus service over a five year period;

c) failed to take into account the views of the Parish Council regarding the existing and proposed bus services.

56. The Inspector's conclusions on the bus service were as follows:

"Sustainable travel

11.37 It is a strategic objective of the SDL to provide high quality convenient public transport connections, as stated in Core Strategy paragraph A7.19(c). This is variously reflected in Core Strategy policies CP1, CP6 and CP19. Such connections are planned, for example in relation to Shinfield West, and have been the subject of considerable investigation [3.4, 5.27, 6.6].

11.38 However, I cannot conclude that they would result from the appeal proposals. The local bus services can be described as good, but I would not say that they fall within a convenient distance of the area of proposed residential development at the appeal site. My view on this takes careful account of the wording in IHT guidance and in PPG13(75) [4.21, 5.27, 6.5].

11.39 Furthermore I found the walking route from the site to the nearest bus service to be unattractive. The need to cross the bridge over the M4 would cause the route to be regarded as inconvenient by some potential users. Various measures are proposed to improve accessibility to bus services but in my view they would not be sufficient to remove, or greatly reduce, these shortcomings [4.21, 5.27, 6.5].

11.40 The appeal proposals now include the introduction of a bus service through the site. But, due to the site location, I am not satisfied that this service would or could be integrated with the above-mentioned planned service for the SDL without detracting from the quality of that service. Nor am I confident that the proposed appeal site service would be viable, particularly after the first five years. Even for the shorter term I cannot be sure about the details or quality of the proposed service or the degree of disadvantage that would result from a one-way limitation [4.22, 5.26, 6.6].

11.41 Turning to other transport modes, there would be reasonable pedestrian and bicycle links with public rights of way outside the site and linking with facilities in Shinfield, both existing and planned. Taking into account the provision for off-site improvement works I judge that the resulting accessibility would be generally adequate, bearing in mind the attention given to sustainability in defining the SDL. My one reservation would be the practicability of achieving the link from the site to Deardon Way, which would help the proposed development to integrate with its surroundings. From what I saw it would appear to be achievable, but I cannot be sure about this given the possible implications of constraints, such as the presence of the badgers' sett [2.1, 4.21, 5.25].

11.42 There are some remaining concerns about road capacity and the ability to accommodate the motor traffic generated by the appeal scheme, but I do not find any significant adverse effects to be clearly substantiated in evidence. Similarly, there is no firm basis for reason for refusal 11 and the view that the closure of Church Lane East would conflict with Core Strategy policies CP4 and CP10 [4.19-21, 4.26, 5.24].

11.43 The site would be relatively well located in relation to the planned park and ride facility [4.21]. However, site location and other things considered, the target of a 15% modal shift away from single occupancy car journeys would be at least challenging. I am not satisfied that it would be achieved, notwithstanding the undertaking to submit for the Council's approval, implement and review a residential travel plan along the lines of the draft Framework Travel Plan [4.23, 5.24].

11.44 I conclude that the appeal proposals do not make adequate provision for sustainable travel modes, especially in terms of public transport. Because I am not confident that the proposed sustainable transport provision would allow effective choice on a lasting basis I conclude that the scheme is deficient in terms of policy CP6, at least in respect of criterion (a). Being doubtful that the scheme would relate positively to provision elsewhere in the SDL, I also conclude that it is not in overall accordance with criterion 11 of policy CP1 or criterion 8 of policy CP19, especially in view of policy CP19's requirement of a coordinated approach [5.27, 6.6]".

57. The Inspector went on to find against the appeal scheme on the following ground (among others):

"11.58 Thirdly, the scheme would not make adequate provision for sustainable transport modes, especially in relation to bus services. In this respect there are shortcomings in terms of Core Strategy policies CP6(a), CP1(11) and CP19(8). "

58. The Secretary of State concluded, at paragraph 18 of the decision letter:

"For the reasons set out in IR11.37-11.43, the Secretary of State agrees with the Inspector's conclusions at IR11.44 and 11.58 that the appeal proposals do not make adequate provision for sustainable travel modes, especially in terms of public transport, and that it is not in overall accordance with the relevant CS policies."

59. In my judgment, the reasoning and conclusions of the Inspector and the Secretary of State do not disclose any error of law. These were legitimate planning judgments, supported by detailed evidence. The Claimant has failed to establish that the Inspector failed to have regard to its evidence or that of the Parish Councils. The suggestion that the Inspector was applying a criminal standard of proof, because of his use of the word "sure" is an example of the "excessive legalism or exegetical sophistication" which Sir Thomas Bingham MR warned against in the case of Clarke Homes.
60. For these reasons, the Claimant's challenge on this ground fails.

Ground 5: Landscape and settlement identity

61. The Claimant submitted that the Inspector erred in his approach to the question of settlement identity by considering the intrinsic character of the ridge line as being determinative, and failing to say what weight he gave to the different view expressed by the Parish Council.
62. The Inspector's conclusions on this issue were as follows:

"Landscape and settlement identity

11.20 I agree that the appeal site is semi-rural in character, with some attractive landscape elements, including mature trees and hedges, that are characteristic of the area [2.1-2, 5.14]. The site can be seen by the public from a variety of distances and, most notably, from the M4 and its footbridges, from Church Lane, and from footpaths nearby to the south of the site [5.12, 6.20]. It contributes to character that is described in the Core Strategy (A7.17) as worthy of retention and part of the identity of the Borough and that is distinctly different from the character of the urban area to the north of the M4 [5.11, 6.19].

11.21 However, the existing trees and hedges would contain the proposed development to a significant extent. I conclude that landscape and visual impacts would be no more than moderate, taking account of mitigation measures [4.37-38, 5.16].

11.22 The ridge on which the site lies does have a worthwhile role in screening Shinfield in views from the north [5.14, 6.19]. The appeal scheme would cause development in Shinfield to spill substantially over the top of this ridge and down the slope towards the M4 motorway corridor. It would result in a visibly narrower gap between Shinfield and Greater Reading. Despite the location of the proposed SANG, this effect would be augmented by the effective addition to the extended built up area of the existing relatively isolated development on Church Lane: and not least, Pulleyn's Yard [2.2, 6.19].

11.23 I share the view that it is not just the physical separation provided by the M4, but also the open green gap, including the appeal site, that plays a part in maintaining the separate identity of Shinfield [5.11-13, 6.4, 6.19]. That gap is most closely appreciated from Church Lane [2.2]. It would be considerably reduced by the appeal scheme. I do not agree that the size of the remaining gap could be justified by comparison with the proposed minimum gap between Shinfield and Ryeish Green as the latter is not included in one of the three SM4 SDL settlements, and in any event the required minimum sizes of gaps can be expected to vary according to their environmental or topographical context [3.2, 4.35]. Nor do I consider that it could be justified simply due to its omission from strategic objective A7.19(b) in the Core Strategy, relevant though that is [4.32].

11.24 For these reasons I conclude that the appeal scheme would work against the settlement separation measures called for by Core Strategy policy CP19(5) [6.4]. Despite the proposed mitigation, including the planting and retention of trees and hedgerows, I doubt that the scheme presents the kind of positive response to topography sought by design principle A7.27(b) of the Core Strategy [5.14]. It would also fail to respect the landscape character of the area as required by saved policy WLL4 of the Local Plan [3.5].

11.25 The conflict with requirement 1a(v) of the SM4 SPD is more clear-cut and specific [5.13, 6.4]. However I give that conflict much more limited weight, having regard to my consideration (under the first issue, above) of the status of that document.

11.26 Despite the mitigating factors I conclude that the scheme would have a material adverse impact on the landscape value of the site, including its role in contributing to gaps to protect the separate identity of nearby settlements. I am particularly conscious of the Parish Council's rather different view on this issue, which I take into account in weighing my finding in the overall balance [7.2]."

63. The Inspector found against the appeal scheme for the following (among other) reasons:

"11.57 Secondly, the proposed built development would have a material adverse impact on the landscape value of the site, particularly in respect of its function in separating settlements and preserving their identities and rural settings. This would not be in accordance with Core Strategy policy CP19(5) or Local Plan policy WLL4."

64. The Secretary of State agreed with the Inspector's reasoning and conclusions in paragraph 15 of his decision letter.
65. On this issue, I accept the submission of Mr Forsdick and Ms Sheikh. Considerations of landscape and settlement character and impacts are quintessentially matters of planning judgment. Here the Inspector visited the Site and was able to make his own judgment. The ridge was a physical feature in the landscape which plainly went to the issue in CP 19(5), and Appendix 7 was clear as to the significance of topography to design principles (A7.27).
66. It was open to the Secretary of State to find that the ridge on which the site lay served a worthwhile role in screening Shinfield in views to the north and that the proposed development would conflict with the settlement separation measures required by CP 19(5). The Claimant's challenge was essentially a challenge to the Secretary of State's planning judgment with which it disagreed.
67. As to the views of the Parish Council, these were recorded in paragraph 7.2 of the Report, and the Inspector expressly took them into account in paragraph 11.26 of his conclusions, saying he was "particularly conscious" of the Parish Council's "rather different view". He did not have to be any more specific about the precise degree of weight he accorded to their views. The submission that the localism agenda required a different approach to that adopted by the Inspector and the Secretary of State overstated its effect on the determination of planning applications: see the analysis of its effect by Males J. in Tewkesbury Borough Council v Secretary of State for Communities and Local Government & Ors CO/8962/2012 & CO/10438/2012, at [55] – [69].
68. For these reasons, the Claimant's challenge on this ground fails.

Ground 6: Inadequate reasons

69. The Claimant submitted that, on the issues raised in the substantive grounds of challenge above, both the Inspector and the Secretary of State failed to give adequate reasons.
70. Applying the guidance given by Lord Brown in South Bucks, I consider that the reasons given by the Inspector and the Secretary of State were intelligible and adequate. I consider that the Inspector's Report was particularly well-constructed and clearly reasoned, in comparison with others I have read.
71. Accordingly this ground of challenge fails also.

Conclusions

72. The Claimant's application succeeds only on ground 1 - failure to take into account the Ministerial Statement. In view of my earlier conclusion that the Ministerial Statement was not trivial in relation to the issues in this appeal and could possibly have made a difference, the Secretary of State's decision is quashed and remitted back to him for re-consideration.