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
		25/06/2014

Mr Justice Lewis:

INTRODUCTION

1. This is an application made under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash a decision dated 2 December 2013 made by an inspector appointed by the Secretary of State for Communities and Local Government. By that decision, the inspector dismissed an appeal by the Claimant against a refusal of planning permission for the development of land at Elvian School, Bath Road in Reading ("the site") for residential purposes.
2. The Claimant contends that the inspector misinterpreted the relevant policy, policy SA9b, in the development plan and considered that that policy precluded primarily residential development on the site. The Claimant also challenges the finding that the proposed development was poorly designed and did not comply with guidance in the National Planning Policy Framework ("the Framework"). The Claimant raises other, subsidiary, issues.

THE FACTUAL BACKGROUND

The Site

3. The site is approximately 5.04 hectares in size. It was, for many years, used as a school. The site includes an area of playing fields comprising about 2 hectares in size. The remaining 3 hectares include the former school buildings and two Victorian buildings, Oakland Hall and Rotherfield Grange, not now in use, and a sunken garden. The site is within 2 kilometres of the centre of Reading. It is bounded by Bath Road to the north and by Southcote Lane to the south, the former being a main access road to Reading and the latter carrying significant residential traffic. The site adjoins the grounds of the Blessed Hugh Faringdon School, a Roman Catholic secondary school.

The Policy Framework

4. The relevant development plan comprises the Second Defendant's Core Strategy adopted in 2008 and the Sites and Detailed Policies Document ("the SDPD"). Policy SA9 of the SDPD deals with sites for mixed use development including housing. SA9, and the specific policy relevant to this site, provides as follows:

"SA9. OTHER SITES FOR MIXED USE DEVELOPMENT INCLUDING HOUSING

The following sites will be developed for a mix of uses including residential use according with the principles set out in this policy."

…..

"SA9b ELVIAN SCHOOL, BATH ROAD 70-110

dwellings

Development for residential and education or alternative community use on the part of the site excluding the playing field.

Some intensification of sporting use on the playing field site may be appropriate, as long as any loss of playing fields is outweighed by sport and recreation improvement, and there is no material increase in traffic on Bath Road.

Development should:

Be appropriately accessed preferably utilising existing accesses;

Retain the trees covered by the Area Tree Preservation Order, other important trees, and landscaped frontages;

Retain and enhance green links across the site, as shown on the Proposals Map;

Take account of the potential for biodiversity interest;

Take account of the potential for archaeological significance; and

Take account of the location partially within the Air Quality Management Area."

5. The accompanying text in the SDPD states that the aim of the policy is as follows:

"The aim of this policy is to identify sites which can provide a mix of uses including housing. This helps achieve core objective 2 of the Core Strategy in that it achieves good access to decent and affordable housing and a range of services and facilities."

6. The accompanying text also states the following under the heading "reasons for the policy":

"Several sites have been identified as having potential for development, which are suitable for other uses in addition to residential. These tend to be sites which are in or adjacent to identified centres or are in highly accessible locations, which, aside from Central Reading and parts of South Reading, are the locations most suited to mixing uses."

and

"Comments relating to identified sites for residential development, in the previous section, apply equally to sites identified under policy SA9. Particular caution needs to be expressed in terms of the dwelling numbers, as these will be strongly dependent on the proportion of each site that will be in residential use, and this proportion is not necessarily fixed at this stage. Dwelling numbers expressed in the policy are therefore a guide only."

The Planning Brief

7. The SDPD also refers to the fact that a Planning and Development Brief ("the Planning Brief") was adopted in February 2011 for the Elvian School site. The Planning Brief explains that it is a material consideration in the determination of any forthcoming planning applications and that it aims to provide planning guidance for the redevelopment of the site.
8. The introduction to the Planning Brief notes that:

"The site, excluding the playing field, is therein identified as being suitable for residential dwellings (70-100 dwellings) and possibly a new school or similar community use".

9. The Planning Brief sets out the redevelopment principles and states at paragraph 6.1 that:

"It is important that the redevelopment of Elvian School site is underpinned by a mix of land uses that will support a sustainable community into the future. The existing site area, excluding the playing fields to the western part of the site, could primarily be residential in use, but a mix of uses would also include education or community use. Consideration should also be given to the opportunity, with Blessed Hugh Farringdon School adjoining the site, for complementary educational or community use of the western part of the site, particularly in terms of the potential for dual use of the pitches, shared between the School and the community (see Section 8 for more information)."

10. Possible alternative uses are referred to at section 9 of the Planning Brief. These include the following:

"9.1 The existing use of the site is primarily educational (Class D1 of the Use Classes Order) so its continued use by an alternative education provider would not require planning permission although any physical changes might."

"9.2 The adjoining site to the east is occupied by the NHS Primary Care Trust and so it would not be unexpected for some interest in some form of clinical use (also Class D1) of the existing Victorian buildings to come forward."

11. Section 12 of the Planning Brief sets out a summary of the redevelopment principles in the following terms:

"To provide a positive sense of place;

To achieve integration of the new redevelopment with the surrounding area;

To improve local environmental quality and ensure that redevelopment proposals minimise any adverse impacts on biodiversity, create new habitats and protect and enhance existing habitats;

To provide a housing density in accordance with parameters set out in the adopted Core Strategy Document (2008) that achieves efficient use of the available land while valuing the character of the established adjacent residential area and quality of existing buildings and landscaped areas on the site;

To provide a mix of housing available in terms of types, sizes and tenure;

To explore the potential for providing replacement educational/community use on site;

To enhance the recreational value, quality and safety of open space on the site for public access

To create a secure layout and environment in accordance with the principles of 'Secure by Design';

To provide a good quality of public realm and ensure that it is clearly defined;

To ensure that new redevelopment is constructed sustainably in terms of its design, construction, drainage and waste management, and

To ensure that proper account is taken of the need to assess the potential impacts on any historic or archaeological remains in redevelopment proposals and to minimise any adverse impacts"

The Application for Planning Permission

12. On 31 July 2012, the Claimant submitted an application for planning permission to redevelop the entire 5 hectares of the site for residential accommodation comprising 193 residential units (170 new houses and 20 units through conversion of existing buildings) with associated access, parking, landscape and open space. The application did not propose any educational or community use on the site. The whole of the site would be used for one use only, namely residential use.
13. The application was considered by the Second Defendant's planning committee on 17 October 2012 and refused.

The Appeal

14. The Claimant appealed against that refusal pursuant to section 78 of the 1990 Act. An inspector was appointed to determine the appeal. He held an inquiry and made site visits. The inquiry received evidence and submissions from the Second Defendant, as local planning authority, the Claimant, the West Reading Education Network ("WREN") and other interested parties. WREN is a group of local parents who have applied to the Department for Education's Education Funding Agency to build a secondary school with six forms of entry. Their preferred site for the school was the Elvian School site.
15. Both the Second Defendant and WREN resisted the application for planning permission on the grounds that, amongst other things, the use of the whole appeal site for residential accommodation would mean the loss of a valuable resource capable of meeting the identified need for secondary school places in this part of Reading. By his decision letter dated 2 December 2013, the inspector dismissed the appeal.

The Inspector's Decision Letter

16. The decision letter deals first with certain preliminary matters. These included the fact that the application provided for development of the whole 5 hectares of the site (including the 2 hectares of playing fields) whereas Policy SA9b provided for the development of the site excluding the playing fields. The Second Defendant confirmed that they were no longer objecting to this aspect of the proposal as the developer would undertake to provide playing fields in another location. The decision letter also records that the Claimant had revised the proposed scheme to take account of concerns expressed by the inspector regarding the fact that the proposal would involve incursion into the root protection area of a substantial number of trees.
17. The Inspector identified the two main issues as follows:

"14. Having regard to the above matters together with the representations made at the Inquiry I consider that the main issues are as follows. Firstly, whether developing the site solely for residential purposes, as the appeal scheme proposes, would be harmful to the provision of education, especially secondary school places, within Reading, particularly the Central West area.

"15. A second main issue relates to the effect of the proposed development on the character and appearance of the locality and whether it constitutes good design, having particular regard to:

The effect of building on the playing fields, especially in the area closest to Bath Road where two blocks of flats are proposed;

Whether, having particular regard to the blocks of flats numbered 1, 5, 6 and 7, the development would appear cramped and tightly packed, at odds with the existing character of the site and its surroundings; and

Whether the layout is contrived and fails to respect the existing urban grain. "

18. The inspector noted that a further main issue related to the effect of the proposed development on the two locally listed buildings on the site, that is Oakland Hall and Rotherford Grange.
19. The inspector then began by considering educational matters including the need for secondary school places. The Claimant and the Second Defendant agreed that Reading had experienced rapid population growth and that that was reflected in the demand for school places predicted by the Council. Future demand for secondary school places was predicted to exceed the existing capacity significantly. Both the Claimant and the Second Defendant (but not WREN) agreed that if a school with six forms of entry were provided in the area, then there would be no further need for a new school in this part of Reading. It was against that background that the inspector noted at paragraph 21 of his decision letter that he was not concerned with determining the best location for the new secondary school rather:

"All that it is necessary for me to consider is whether allowing the whole of the appeal site to be developed for a non-school use at the present time would be likely to have a significant and harmful effect on the ability to provide the much needed secondary school places."

20. The inspector then considered whether the site could accommodate a new secondary school of sufficient size. In that regard, he noted that the site was not retained entirely for education use. Rather, as the inspector noted at paragraph 25 of the decision letter, Policy SA9b provided that the site was allocated for mixed use, that is residential and educational or community use.
21. In practical terms, the inspector considered that a figure of 70 to 110 dwellings was referred to in Policy SA9b and that suggested that about 2 hectares of the site would be available for residential development. The inspector noted, however, that the policy was to be applied flexibly and that the text attached to the policy advised caution on the numbers of dwellings as the proportion of the site available for residential use was not necessarily fixed. The decision letter says at paragraph 26 that this suggests that using less of the site for housing and more for education purposes would not be inconsistent with the policy. Similarly, at paragraph 31 of the decision letter, the inspector stated that he did not agree with the Claimant's view that the site was allocated for primarily residential purposes. He stated that although he thought it was clear that residential use was intended to cover no more than about 2 hectares of the site, it might be acceptable to increase that amount if it were clearly established that any education or other community use needed less. At paragraph 32, the inspector said this:

"On this point I therefore conclude as follows. About 40% of the site is allocated for residential development and any attempt to acquire the entire site is likely to have to reflect this. Even if the EFA's comment that they have not ruled out acquisition of the appeal site is taken as doing more than simply reserving their position, it is not clear that they would wish to buy land at residential values especially if an alternative is available. The decision would, of course, be a matter for them. However, on the information available to me, I consider that acquisition of the whole of the appeal site for school use is likely to be problematic. That said, the acquisition of about 3ha for education use seems more practicable. That might not satisfy WREN's aspirations, but such a site would still be larger than the Coley Park one."

22. The inspector then considered likely future educational provision. He concluded that there was a real likelihood that what would emerge at Colely Park (another possible school site) was a school with less than six forms of entry. His reasoning on this is at paragraph 37 and is in the following terms:

"What is less clear is the size that such a school would be. The Council cannot control this and I understand that at least one new secondary school proposal in the Reading area, an academy, has been 4FE, as it suited the site. Moreover, whilst the WREN submission was for a 6FE school the Coley Park site is small for this. It appears that no on-site playing field provision would be possible, which seems most unusual for a new secondary school. Taken together with the reservations expressed by the Council in the pre-application consultation this suggests that the size of the school might need to be given further thought and that something smaller could be the optimum. I conclude that there is a real likelihood that what will emerge at Coley Park is a school of less than 6FE."

23. In that eventuality, the remaining shortfall of secondary school places (four or five forms of entry) would not be easily accommodated by expanding existing schools. There may therefore be a need for a new school on a new site. The inspector noted the Claimant's views that the Council's predictions were a worse case scenario and said this:

"40. I have taken into account the appellants' view that the Council's predictions, though not disputed, are a worst case scenario. Amongst other things I have had regard to the potential for improved economic conditions to lead to migration of families out of Central West Reading and a reduction in children living there. However, dwellings are unlikely to remain empty and the extent of any reduction in demand for school places is unclear.

"41. In any event, the Council's figures rely on a significant proportion of Reading's secondary school age children continuing to attend schools outside the borough. Whilst that is assumed to be less than in the past (with admissions limited to those living within existing catchment areas) I do not regard that as necessarily a worst case scenario. A substantial amount of housing development is proposed in some neighbouring authorities, who might reasonably be expected to give first priority to their own children. I conclude that at the present time it would be unsafe to assume that the shortfall in places will be significantly less than the Council's predictions.

"42. Furthermore, government policy (which for planning purposes is set out in paragraph 72 of the NPPF) attaches great importance to ensuring that a sufficient choice of school plces is available. It is clear from the representations I have received that many local residents share this view and would not wish their children to have to travel long distances. This suggests that limiting secondary school places to the bare minimum may not be ideal and that a modest degree of overprovision could be more beneficial than harmful. I conclude that on the evidence currently available there is a real possibility that a new secondary school could be required in Central West Reading in addition to what is likely to come forward at Coley Park."

24. His conclusions on the educational matters was as follows:

"43. In the near future there will be a serious shortfall in secondary school places in Reading, especially in the Central West area where the appeal site is located. How this shortfall will be met is not yet clear. The EFA have acquired a site for a free secondary school in this area, Coley Park, but no organisation has as yet committed to opening a school there. Moreover, whilst the current intention seems to be that it would be a 6FE school the site is very small and I have some reservations about the size of school that will materialise.

"44. Furthermore, if it is less than 6FE the need for another new school to serve the Central West area cannot be ruled out with confidence. No one has identified a site suitable for such a school other than the appeal one. I have noted that Policy SA9b does not reserve the whole for the appeal site for education purposes and acquisition of the entire site for school use may be problematical. However, the 3ha that are not identified for residential use would be bigger than the site at Coley Park (and in WREN's view would be better located). It might not make an ideal school site and would not seem to meet WREN's aspirations but no better option has been brought to my attention.

"45. The overlap of catchments might not be ideal, but I do not regard this as an overriding objection. Nor do I regard the refusal in 2009 of a proposal for a different type of school with its own particular access arrangements and a different package of accompanying development to be sufficient to indicate that a new school would not be acceptable on the appeal site.

"46. In addition, even if the education facility envisaged by Policy SA9b was not a secondary school, the policy was intended to have some flexibility. Moreover, any argument that a site allocated in part for an unspecified education use should not be used for an education purpose for which a need existed just because it was not the type of facility originally envisaged would be contrary to good planning and common sense.

"47. I conclude that the current level of uncertainty regarding the size of school that will open at Coley Park and, if it is less than 6FE, how the additional shortfall would be met is such that releasing all of the appeal site for residential use, contrary to Policy SA9b, could have potentially serious implications for secondary school education in the area. This would be undesirable and contrary to the thrust of paragraph 72 of the NPPF. This in itself is a compelling reason why housing development should not be allowed to go ahead on the whole of the site at the present time. "

25. The inspector then turned to the effect of the proposal on the character and appearance of the area and design. He had particular concerns in relation to blocks 6 and 7 of the proposed residential development and concluded at paragraph 59 that:

"they would not enhance the character and appearance the area, or even be neutral, but would intrude unsympathetically into the generally green streetscene in a harmful way. They would be more prominent than the houses on the opposite side of Bath Road. This is a further serious objection to the appeal scheme."

26. The inspector expressed further reservations about the proximity of blocks 6 and 7 to the southern boundary of the plots and houses beyond and the lack of windows in the southern elevations. At paragraph 64 he said that these matters reinforced his conclusion that the appeal scheme was "not a particularly well thought out and high quality design". The inspector expressed further reservations about the layout of the design and said this:

"67. In addition, the houses in plots 138-143 are located behind others of apparently similar size and status that front onto one of the principal roadways and would face the rear gardens of the frontage houses. A similar situation occurs around plots 27-29. In my experience such arrangements are often problematic in terms of visual amenity and can lead to issues of privacy and security. I do not share the appellants' view that these areas would form an attractive environment or appear well-designed. Moreover, arrangements like this do not seem to be characteristic of the locality and, even if they were, that would not necessarily mean that it is desirable to replicate them.

"68. Labelling these areas as mews courts cannot change this. In any event they are not mews courts in the traditional form to be found in, particularly, London. I am aware that developments in suburban areas are now often referred to as mews, but that seems to me more a marketing device than an accurate description. In effect such schemes might often be better described as backland development. This may be acceptable, if carefully designed, on infill sites where it is desirable to make the most efficient use of land. However, it does not seem appropriate on a relatively large site, like the appeal one, where all but two of the existing buildings are to be demolished leaving considerable scope for a variety of other, potentially more appropriate, solutions."

27. Particular objection is taken in these proceedings to paragraph 68 of the decision letter. The inspector also made a comment at paragraph 71 to which the Claimant also takes particular objection to in these proceedings. He said:

"Even so, permeability related matters are, in my view, of only modest significance, and would not in themselves justify dismissing the appeal. That said, in conjunction with the other concerns I have identified, they suggest that the scheme has not been well thought out and would not deliver a high quality residential environment or one that encouraged walking. The need to amend the scheme to address my concerns regarding trees, and which enables the trees on the site to be seen as an asset rather than a potential source of future problems, supports this view. It strongly suggests that whilst the proper processes of analysis may have been undertaken, this was not carried through to produce a high quality design. Moreover, whilst the amended scheme is an improvement it by no means overcomes all the flaws."

28. The inspector's final conclusion on character and appearance and design is set out at paragraph 72 of his decision letter where he said this:

"I conclude that the proposal as a whole represents poor design and does not therefore comply with national guidance as set out in the NPPF or constitute sustainable development. To the extent that these matters are publicly visible they would also detract from the character and appearance of the area. The scheme is therefore contrary to development plan policy in particular Policy CS7. These matters would be an overriding objection to the appeal scheme even there were no objection on education ground."

29. The inspector then dealt with the effect of the proposed development on heritage assets and other matters. He considered additional matters said to weigh against the scheme, such as highways and traffic issues, and concluded that they did not provide any basis for dismissing the scheme. He considered the additional matters relied upon by the Claimant as weighing in favour of the scheme including the sustainability of development at this location and the fact that the scheme would bring previously developed land back into use. His conclusion on these additional matters is expressed at paragraph 93 of the decision letter in the following terms:

"However, all of this is reflected in the site's allocation, which as set out earlier, is not (despite the appellants' contention) wholly or even primarily residential. New housing as envisaged in the Council's housing land availability figures could be delivered by a development that left available for education purposes an area larger than the Coley Park school site (if the playing fields are included). Moreover, the housing land supply appreciably exceeds 5 years and would continue to do so even if no houses are built on the appeal site in the immediate future. Accordingly, until the education position is clearer I consider that it would be inappropriate to allow housing development beyond that provided for in Policy SA9b and the development brief. These matters do not justify allowing the appeal scheme, with all its defects, at the present time, notwithstanding the economic and social benefits of house building."

30. The inspector summarised his conclusions at paragraphs 100 to 102 of the decision letter in the following way:

"100. I conclude that none of the matters raised by the appellants in favour of the appeal scheme are sufficient either individually or in combination to outweigh my conclusions based on the main issues. These are that, at least until there is greater clarity regarding the scale of secondary school provision that will be made on the Coley Park site, it would be inappropriate to allow residential development on the appeal site to an extent that would conflict with its allocation and prevent some form of secondary education provision there.

"101. In any event, the appeal scheme is of a poor quality design that does not constitute sustainable development and would detract from the character and appearance of the locality. In addition, although some of its provisions would be beneficial in heritage asset terms, it also causes serious harm to those aspects of the assets that are of greatest importance. At best the scheme can be regarded as little more than neutral in these terms and this is insufficient to outweigh the other objections to it and justify allowing the appeal, even taking into account the possibility that the buildings may then be demolished.

"102. I therefore consider that the proposal is contrary to local and national policy and that there are no other material considerations sufficient to indicate that it should nevertheless be allowed to go ahead."

31. The inspector accordingly dismissed the appeal against the refusal of planning permission.

THE ISSUES

32. The Claimant contends that the inspector erred in law in six respects and that, accordingly his decision should be quashed pursuant to section 288 of the 1990 Act. The six issues, in summary, are whether the inspector:

(1) erred in his interpretation of Policy SA9b;

(2) erred in his assessment of the need for future secondary school places;

(3) misunderstood the evidence in relation to whether the site had utility for secondary school places;

(4) erred in concluding that a new school at the Coley Park site might not be for 6 forms of entry and so there might be a need to provide a further site for a secondary school providing the secondary school places predicted to be needed;

(5) failed to give proper, adequate, intelligible reasons for his rejection of the layout of the site; and

(6) failed to act in accordance with the principles of procedural fairness and natural justice in criticising the design of scheme on the basis that amendments had been made to the scheme to deal with concerns about trees without giving the Claimant the opportunity to call evidence on that issue.

THE LEGAL FRAMEWORK

33. Planning permission is required for development including, as here, the erection of a building and the making of a material change of use of land: see sections 55 and 57 of the 1990 Act. Section 70(1) of the 1990 Act provides that a local planning authority may grant planning permission, either unconditionally or subject to such conditions as they think fit or refuse permission. Section 70 (2) of the 1990 Act provides that where an application for planning permission is made to a local planning authority, then:

"(2) In dealing with such an application the authority shall have regard to

(a) the provisions of the development plan, so far as material to the application,

(b) any local finance considerations, so far as material to the application, and

(c) any other material considerations."

34. The development plan is defined in section 38(3) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act"). Further, section 38(6) of the 2004 Act provides that:

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

THE FIRST GROUND: THE INTERPRETATION OF POLICY SA9b

The Relevant Policy

35. The development plan in the present case includes the SDPD and the relevant policy, Policy SA9. If the Claimant's application did accord with the development plan, and in particular with Policy SA9b in the present case, then planning permission would be granted unless material considerations indicated that it should not be granted.

The Claimant's Concerns

36. The principal concern of the Claimant was that the inspector misconstrued Policy SA9b and that his reasoning, if followed in other cases, would preclude the grant of planning permissions for development which did accord with the Policy SA9b. There are various strands to the Claimant's criticism of the inspector's reasoning. These include the following. First, the Claimant contends that a proposal whereby the entire site would be used for residential accommodation, and any community use would be provided at another location, would accord with the policy. Secondly, the Claimant contends that, properly construed, Policy SA9b envisages (or at least permits) a mixed but primarily residential use of the site. Thirdly, the Claimant contends that non-residential use could be either educational or community use and that the community use could be, as it was expressed in the Claimant's skeleton argument, "significantly low-key", and that even a clinical use of either of the two locally listed buildings (Oakland Hall or Rotherford Grange) would accord with the policy. The implication of this approach was, it seems, to indicate that the policy envisaged, or least permitted, a large part of the site being used for residential accommodation with only a small area or possibly, it seems, only parts of the existing buildings on the site being used for non-residential purposes.
37. In oral argument, Mr Strachan Q.C. focussed his submissions on those parts of the reasoning of the inspector which, he submitted, interpreted the policy as involving an allocation of 40% of the site only (i.e. 2 hectares) for housing and the allocation of the remaining 1 hectare for education or community use. He submitted that Policy SA9b does not limit the residential development to 2 hectares. Further, he submitted that the developable area of the site (the area excluding the playing fields) was less than 3 hectares as account needed to be taken of features such as the sunken garden and trees so that, if 2 hectares were allocated for residential development there would be less than 1 hectare available for non-residential use in any event. The implication is that the finding of the inspector that 3 hectares of the site (1 hectare of the developable area and the 2 hectares of the playing field) could be used for a secondary school is flawed. Mr Strachan further criticised the statement by the inspector that it might be acceptable to increase the area used for residential accommodation above 2 hectares if it were clearly established that any education or other community need were less.

The Proper Approach to the Interpretation of the Policy

38. The proper approach to the construction of the development plan is set out in Tesco Stores Ltd. v Dundee City Council [2012] UKSC 13. In essence,

(1) decision-makers are required to proceed upon a proper understanding of the development plan;

(2) the proper construction of the development plan is a matter of law for the court and "policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context" (see per Lord Reed at paragraph 18);

(3) it is, however, necessary to bear in mind that such policy statements are not analogous to statutes or contracts and should not be construed as if they were;

(4) further, development plans policies may well be framed in a way where the application of the provision of the development plan to a particular set of facts may require the exercise of judgment on the part of the relevant decision-maker. The exercise of such a judgment is primarily a matter for the decision-maker whose judgment can only be challenged on established public law grounds.

39. The latter two points are explained in the following way by Lord Reed at paragraph 19 of his judgment in Tesco Stores Ltd. v Dundee City Council [2012] UKSC 13:

"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 759, per Lord Hoffmann, p 780). Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean."

The Proper Construction of Policy SA9b

40. In my judgment, properly construed, Policy SA9b is to be interpreted as follows. First, the policy provides that the site (excluding the playing fields) will be used for mixed use, that is residential use and education or community use. Use of the entire site for one use (whether entirely for residential, or entirely for education or community use) would not accord with Policy SA9b.
41. Secondly, the precise proportion of the site to be used for housing, or for educational or community use is not prescribed. Thirdly, and related, the number of dwellings referred to in Policy SA9b, that is 70 -110, is indicative not fixed. As the precise proportion of the site to be used for housing is not fixed, the precise number of dwellings cannot be fixed. There may be more dwellings than 110 or there may be fewer than 70. This interpretation is supported by the text to the policy which notes that particular caution needs to be expressed in terms of dwelling numbers as these are dependent on the proportion of the site that will be in residential use.
42. Fourthly, in my judgment, the application of that policy to a particular proposal will involve an element of judgment on the part of the planning authorities as to whether a particular proposal provides an appropriate balance between residential use and educational or community use. Thus, by way of example, if a proposal were made for housing use and community use, the decision maker would have to consider whether the balance as proposed satisfied the underlying aim of the policy which is to ensure an appropriate balance between housing and access to other services and facilities.
43. That assessment, in my judgment, is better seen as an application of the policy. The mere fact that a proposal includes an element housing use and an element of education or community use would not automatically mean that the proposal accorded with the development plan policy. Such a proposal would satisfy the literal words in the text in that it is a proposal for mixed use as there is a housing use and an element of education or community use. Whether the proposal provided a sufficient balance between the housing and the educational or community use would involve a further judgment as to how the policy should be applied to the facts of that particular proposal. In my judgment, if the decision-maker considered that the relative proportions of the housing and the educational or community use were not sufficient to meet the aims underlying the policy, the proposal would not accord with the development plan for the purposes of section 38(6) of the 2004 Act. Other material considerations would need to exist to justify the grant of permission.
44. The alternative analysis of the position is to treat the fact that a proposal involves a housing use and an element (no matter how small) of educational or community use as meeting the requirements of the policy. The grant of permission would therefore accord with the policy. If the decision-maker considered that there was insufficient educational or community use proposed, and there was a need for a greater proportion of the site to be used for one of those uses, then the decision-maker could treat that need as a material consideration justifying departing from the policy and refusing permission. I understood Mr Strachan to accept that, as a minimum, it would be open to a decision-maker to take this approach to the policy, that is to regard the policy as satisfied if there was in fact housing and an element of educational or community use and any need to use a greater area of the site for educational or community use would be assessed by reference to whether that was a material consideration justifying departing from the development plan and refusing permission for a development which accorded with the development plan.
45. In my judgment, the former analysis is preferable and the application of the policy, properly construed, requires consideration of the balance between housing use and educational or community use. However, that issue does not, on the fact of this case, have to be resolved.

The Inspector's Decision

46. In the present case, the proposal provided for the entire site to be used for housing. The proposal did not provide for a mixed use. It did not include any element of educational or community use on the site.
47. In my judgment, the inspector correctly approached the proposal on the basis that "the policy envisages a mixed use development including some housing": see paragraph 27 of the decision letter. The inspector correctly rejected the argument that the policy, which envisages a mixed use development, could properly be interpreted as encompassing an entirely residential scheme with a contribution towards community use being provided by an off-site community facility. Policy SA9 provides that "the following sites" will be developed for a mix of uses. One of those sites is the Elvian School site. SA9b provides what the mixed uses of that site are to be, that is, the site is to be developed for a mix of uses including housing and educational or community use. It would not accord with the development plan policy to use the entirety of the site for housing with any educational or community use taking place off-site. In those circumstances, the site would be developed for a single use not a mixed use. That, in my judgment, would be a departure from the policy and would have to be justified by reference to other material considerations.
48. Furthermore, the inspector correctly concluded that it would not be appropriate to describe Policy SA9b as allocating the site primarily for residential purposes. The site is allocated to be developed for mixed use including housing and educational or community use (excluding the 2 hectares comprising the playing fields). It would not be accurate to describe that allocation as primarily for residential purposes. Neither the purpose of the allocation, nor the area to be developed, indicates that it is appropriate to describe the allocation as primarily residential.
49. The starting point, therefore, is that the inspector was correct to conclude that this particular proposal did not accord with Policy SA9b of the development plan. The inspector then considered the arguments about the educational use that might be made at the site. His ultimate conclusion was that there might be a need for secondary school places, and that part of the site might be a suitable location for a secondary school. As he concluded at paragraph 47, "releasing all of the appeal site for residential use, contrary to Policy SA9b could have serious implications for secondary school education, that would be undesirable and contrary to the thrust of paragraph 72 of the Framework" (which, broadly, encourages local authorities to take an approach which will ensure that a sufficient choice of school places is available). The policies in the Framework are themselves, material planning considerations. In my judgment, the inspector's approach was, in broad terms, correct and his decision to dismiss the application on this basis was lawful.
50. That said, there are occasions when the inspector expressed himself, in relation to the facts of this case, in a way which, read out of context, could be misinterpreted. The inspector recorded that a figure of about 70-110 dwellings (the indicative or guide figure set out in SA9b) suggested that about 2 hectares of the site would be available for residential development. Later, the inspector referred at paragraph 30 of the decision letter to about 2 hectares being "effectively allocated for residential development". Similarly, in the conclusion at paragraph 32 he referred to about 40% of the site being allocated for residential development. He also referred to the residential use being envisaged to cover no more than about 2 hectares although it might be acceptable to increase that if the educational or community need were less. Read in context, the paragraphs complained of are in substance addressing the arguments made to the inspector about whether the site as a whole or in part could accommodate a secondary school. The comments should not, however, be read as indicating that Policy SA9 does allocate fixed proportions of the site for any of the particular uses envisaged.
51. Rather, for the reasons given above at paragraphs 41 to 42, Policy SA9b, properly construed, does not itself allocate a fixed area for any particular use. It does not allocate a particular area of land for housing and a particular area for educational or community use. Policy SA9b is more flexible. It allocates the site for mixed use including housing and educational or community use (excluding the playing fields). The precise proportions of the site to be used for housing or for educational or community use are not fixed. The decision-maker will have to judge whether or not a particular proposed development comprises mixed uses for residential and educational or commercial and whether the balance between the uses is appropriate in the way described above. Even if the proposed balance of housing and other educational or community use in a particular proposal did accord with the development plan, but would not envisage the building of a secondary school, the need for a secondary school might still amount to a material consideration justifying departure from the development plan and refusing the application. All of these matters are, however, at present speculative.
52. What is, however, clear is that the inspector was entitled to conclude as he did that the proposal forming the subject matter of the appeal was not in accord with the development plan as it did not involve mixed use but involved using the entire site for one use, namely residential use. The inspector was entitled to conclude that it was undesirable, at present, to allocate the whole of the site for residential use contrary to Policy SA9b as set out in paragraph 47 of his decision letter. In my judgment, that approach was lawful on the facts of this case.
53. Even if this conclusion were wrong, however, it is clear as explained below that this proposal would have been refused on the grounds of its effect on the character and appearance of the area and its poor design. For the reasons explained below, it would not be appropriate to quash the decision to dismiss the appeal given that the appeal would have been dismissed and planning permission for this development refused in any event.

THE SECOND, THIRD AND FOURTH GROUNDS: OTHER MATTERS RELATING TO EDUCATIONAL NEED.

54. The Claimant makes three further criticisms of the assessment by the inspector in relation to the likely future need for secondary school places. First, in relation to the assessment of the need for places, and the consideration of the Claimant's argument that the Second Defendant's predictions as to the number of places needed in Reading were a worst case scenario, it is said that the inspector erred in law. The inspector said that neighbouring authorities might reasonably be expected to give first priority to their own children: see paragraph 41 of the decision letter. Consequently, he considered, it is said, that pupils would need to find places in the Second Defendant's schools. It is said, correctly, that a local education authority cannot give priority to children in their own borough: see R v London Borough of Greenwich ex p. Governors of John Ball Primary School (1989) 88 LGR 76.
55. First, the statement of the inspector at paragraph 41of his decision letter must be read in context. The Claimant and the Second Defendant agreed that there had been rapid population growth in recent years, that was likely to continue and that was reflected in the Second Defendant's predictions for the number of secondary school places likely to be needed. Secondly, the comment related to an argument that the Claimant advanced that the predictions should be viewed as a worst case scenario. The inspector for a variety of reasons did not regard the predictions as necessarily involving a worst case scenario. The predictions were reliant in any event on a significant proportion of Reading's secondary school children attending schools outside the borough. New housing was proposed in some neighbouring authorities. Even if the inspector did mean that he thought (wrongly) that other boroughs could give priority to their children, the comment was at most, a generalised comment which cannot possibly have affected the inspector's underlying concern, expressed in the next sentence that it was not safe at the present time to assume that the number of places needed would be "significantly less than the Council's predictions". Thirdly, the insignificance of the comment becomes even more apparent in the light of the next paragraph of the inspector's reasoning, namely that he had regard to paragraph 72 of the Framework and the importance of ensuring a sufficient choice of places was available. He had received representations that local residents would not want their children to travel long distances to school. That suggested that even if the predictions were the worst case scenario, and might lead to some overprovision of school places, that would be beneficial. There is, therefore, no basis at all for concluding that the inspector's decision on this aspect was in any realistic or discernible way influenced by an error as to whether a local education authority could give preference in the allocation of school places to children living within its borough.
56. The third ground of challenge involves an assertion that the inspector erred in assuming that there was utility in preventing development of the site for housing as it was no part of WREN's case that they wished to establish a school on 3 hectares of the site. WREN wished to use the whole site not simply 3 hectares. There is no flaw in the inspector's analysis. The fact is that the proposed development did not accord with Policy SA9b. The inspector considered that there might be a need for a further secondary school and that this site might be capable of providing the location for such a school. In those circumstances, he considered it undesirable at present to allocate the whole of the site for residential use, contrary to the provisions of SA9b as that would prevent the possibility of using the site for secondary education. That is a rational approach to the consideration of this proposal.
57. The fourth ground of challenge asserts that it was wrong for the inspector to assume that the Coley Park site might not accommodate a school with six forms of entry. The inspector's conclusion involved an exercise of judgment on the part of the inspector. He based his view on the facts that the site was small, lacked playing fields and reservations had been expressed which might require the size of the school to be reconsidered. Consequently, he had reservations about the size of the school that would materialise. That was a matter of judgment for the inspector. There is no basis for suggesting that his conclusion was irrational or otherwise unlawful.

THE FIFTH GROUND: ADEQUACY OF REASONS

58. The Claimant asserts that the inspector failed to give proper, adequate, intelligible reasons in relation to one matter, namely his findings on layout in paragraphs 66 to 68 of the decision letter. The criticisms focus on paragraph 68 of the letter and asserts, in essence, that the inspector failed to give adequate reasons as to why the proposed layout was harmful.
59. In fact, the inspector's reasoning on this issue appears fully, adequately and intelligibly in paragraph 67 of the decision letter. He notes that the houses on plots 138 to 143 are located behind others of similar size and would face onto their rear garden and that this situation applies also around plots 27 to 29. He considered that that would lead to problems relating to visual amenity and lack of privacy and security and were not characteristic of the location (and would not be desirable, even if they were). Those are adequate reasons for his conclusion and satisfy the requirements identified in South Bucks District Council v Porter (No. 2) [2004] 1 WLR 1953.

THE SIXTH GROUND: PROCEDURAL UNFAIRNESS

60. The Claimant contends that they amended the proposed scheme to take account of concerns expressed by the inspector in relation to trees. They contend that it was not necessary to do so and was done without prejudice to their contention that amendments were not necessary. The Claimant then contends that it was unfair of the inspector to treat the fact that amendments were made as an indication that the scheme was not well thought out and would not provide a high quality residential environment. The Claimant contends that the inspector should have given them the opportunity to adduce evidence to deal with their view.
61. First, the inspector found that the proposal was not well thought out and did not provide a high quality design. He reached that conclusion because of the lack of windows in blocks 6 and 7, and the layout of houses on plots 138 to 143 and 27 to 29: see paragraphs 64 and 67 of the decision letter. The conclusion on this aspect of the proposal is at paragraph 72: the proposed scheme represents poor design, does not comply with national guidance and is not sustainable. The issue of the amendments to the trees did not affect that conclusion.
62. Secondly, in my judgment, there was no unfairness in the way that the inspector dealt with trees in any event. He raised his concerns. The Claimant knew it was an issue and produced an amended scheme but decided not to call witnesses to explain why the original scheme was prepared in the way that it was. Even if, however, there was any unfairness, it does not affect the basic conclusion of the inspector that the proposal represented poor design (for reasons separate from the issue relating to trees) and for that reason alone planning permission should be refused.

OVERALL CONCLUSION

63. In my judgment, the inspector did not err in his approach to the appeal. This was a proposal which was not in accord with the relevant development plan policy, Policy SA9b. That required the site to be developed for mixed use including housing and educational or community use. The proposal involved using the entire site for housing. The inspector considered, for rational reasons, that it would be inappropriate at the present time to allow residential development on the whole site contrary to policy SA9b.
64. Furthermore, and in any event, this appeal would have been dismissed on the sole ground that it was of poor quality design which did not constitute sustainable development and would detract from the character and appearance of the area as is clear from paragraph 101 of the decision letter. Even if there were any error in relation to the way in which the inspector dealt with the educational matters, the appeal would have been dismissed and this proposed development would not have been given planning permission for this other reason alone.
65. The Claimant contended that the inspector considered that the additional benefits of the proposed were not outweighed by the educational and the design and appearance issues, relying on comments made at paragraph 93 of the decision letter. It was, therefore, contended that the court could not be sure that the same decision would have been reached if the only difficulty with the proposed development were the design and effect on character and appearance. In my judgment, reading the decision letter as a whole, and in particular paragraphs 72 and 101, this appeal would have been dismissed in any event solely because of the concerns over the scheme's poor quality design, lack of sustainability and the fact that it detracted from the character and appearance of the area. In those circumstances, it would be inappropriate to quash the decision dismissing the appeal.
66. For those reasons, this application is dismissed.