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
		25/03/2015

Mrs Justice Patterson:

Introduction

1. This is a claim for judicial review of a planning permission RU.13/0856 granted by the defendant, Runnymede Borough Council on 12 August 2014. The planning permission granted was for a mixed use development on part of the former Defence Evaluation and Research Agency (DERA) site north of the M3 at Chobham Lane, Chertsey, Surrey (and known as DERA North). The development was described as including 79,025 square metres of B1 employment uses, 36,000 square metres of sui generis use as a data centre, two hundred dwellings and 6,300 square metres of ancillary use.
2. The claimant is the freehold owner of the Longcross Estate, Surrey, which is close to the DERA site. It participated throughout the planning process which resulted in the grant of planning permission on DERA North and made representations strongly opposed to the grant of planning permission.
3. The defendant is the Local Planning Authority for the area in which the application site is located.
4. The interested parties are equal joint venture partners in developing DERA North. The second interested party is also the owner of DERA North and part owner of DERA South.
5. Permission to bring proceedings for judicial review was granted on the basis that all grounds were arguable by Lang J on 21 November 2014.
6. Originally there were six grounds of challenge, namely:

i) That the officer report wrongly advised members that the question of whether there was a preferable alternative site for development was not a material planning consideration;

ii) That the officer report failed to deal with representations made by planning consultants acting on behalf of the claimant about the five year housing land supply;

iii) That the officer report failed to take into account the conclusions of the inspector who had considered the Runnymede Local Plan Core Strategy (LPCS);

iv) That the officer report failed to take into account the Inspector's conclusion in the LPCS that the defendant had failed to comply with its statutory duty under section 33A of the Planning and Compulsory Purchase Act 2004 to cooperate with neighbouring planning authorities;

v) That the officer report misdirected members as to the issues of prematurity or precedent; and

vi) That the public had a legitimate expectation that the land at DERA would not be released for development before (at least):

a) The defendant conducted a review of greenbelt boundaries throughout Runnymede Borough;

b) That review was scrutinised by an independent inspector; and

c) The Inspector's conclusions on that review had been taken into account by the defendant.

Factual Background

7. The planning application site is bordered by Chobham Lane and the M3 motorway to the south, the Reading to Waterloo railway line to the north and to the west is the boundary of the Council's area with that of the neighbouring borough of Surrey Heath. The planning application site is 33.6 hectares. The DERA North site includes an additional 7.7 hectares situated within Surrey Heath. That land is not part of the site the subject of this legal challenge.
8. The site is currently occupied by around 77 buildings of industrial appearance with the tallest around 24 metres in height. Some 13 further buildings are situated on that part of the DERA North site within Surrey Heath Borough. Built development on the whole of the DERA North site extends to a total floor area of about 76,885 square metres (65,872 square metres of built footprint). Photographs in the court bundle of the DERA North site show a site with extensive existing built development, a fair proportion of which is in a dilapidated condition.
9. The site has a long planning history most of which relates to its former use as a site by the Ministry of Defence. It was acquired by the second interested party from the Ministry of Defence in 2004.
10. The application site lies within the Metropolitan Greenbelt. It was designated a major developed site within the greenbelt in the Runnymede Local Plan Second Alteration 2001.
11. In 2003 the defendant granted two certificates of lawful use in relation to DERA North. One related to the DERA North land within its administrative area for B1 (business) use with minor ancillary uses including B8 (storage/distribution), A3 (food and drink), D1 (non-institutional uses), D2 (assembly and leisure) and sui generis hostel use. The other was a certificate in respect of the existing use of DERA South. Surrey Heath Borough Council granted a certificate in respect of the use of the part of the DERA North site within its administrative area for B1 use with ancillary B8, A3, D1, D2 and hostel use with associated infrastructure. In September 2003 the defendant granted a further certificate for the retention of 25 war period buildings on the site which were excluded from the certificate of existing lawful use application.
12. In May 2005 the defendant granted a further certificate of existing lawful use or development on the DERA South site for a mixed lawful use including military and non-military commercial uses.
13. In 2009 the South East Plan (which was the relevant Regional Spatial Strategy) identified the DERA site (north and south) for 2,500 dwellings in policy LF6. The South East Plan was revoked in March 2013.
14. In June 2011 planning permission was granted for up to 113,434 square metres of commercial development including B1 use with supporting retail and café/restaurant facilities, child care facilities, leisure facilities and decked vehicle parking. The development involved the demolition of buildings, removal of hard standing, creation of ecological habitat areas and the creation of up to 3,079 car parking spaces. That permission related to the whole DERA North site, including land in Surrey Heath Borough, which granted planning permission for the same development under its own reference. I shall refer to that permission during the rest of this judgment as the extant permission. That permission appears to have been granted on the basis that the development proposed was appropriate within the greenbelt as it was on a previously developed site and the openness of the greenbelt was not harmed.
15. In 2012 planning permission was granted for an alternative access roundabout to that granted by the extant permission. The roundabout approved in 2012 has recently been constructed.
16. In December 2013 the defendant published the submission draft of the Local Plan Core Strategy (LPCS). Policy LPO1 was entitled Strategy for the Location of Sustainable Development. It directed new development to, amongst other locations, the former DERA site at Longcross. The site was to be the focus of a new mixed use development in the west of the borough, to include both residential and commercial development with supporting infrastructure. The draft policy noted that about 79 per cent of the borough was in the greenbelt. It was proposed to remove the former DERA site from the greenbelt to enable the creation of a new community. That was to provide a substantial element of future housing requirements for Runnymede.
17. A contingency plan was identified to address difficulties if it became impossible to identify a five year supply of housing from sites within the urban areas. In that event identified reserve sites were to accommodate the additional housing required in a phased approach if minor shortfalls in supply were identified. In any serious shortfall in the latter part of the Plan period a borough wide greenbelt review would be undertaken to identify any site that could be of use in meeting any such shortfall.
18. On housing provision and distribution, under policy LPO2, 220 net dwellings per annum were to be provided in the Borough between 2013 and 2018, including provision for about 1,500 dwellings on the former DERA site at Longcross.
19. The draft LPCS was the subject of examination by an Inspector. He held a hearing on 9 April 2014 and issued a report on 29 April 2014. He found that the defendant had not complied with its statutory duty to co-operate. The LPCS has now been withdrawn.
20. Planning permission was granted for the mixed use development on 12 August 2014.
21. Reserved matters approval has been granted since then for the first reserved matters parcel under the extant permission.

Legal Framework

22. There is little between the parties in terms of the law. Such differences as there are tend to be of emphasis.
23. Planning officer's reports should be read in good faith, as a whole and not legalistically. A decision to grant planning permission will be unlawful if the planning officer's report to committee significantly misleads members about material matters and, thereafter, is left uncorrected at the meeting of the planning committee before the relevant decision is taken: see R (Zurich Assurance Limited trading as Threadneedle Property Investments) v North Lincolnshire Council [2012] EWHC 3708 (Admin) at [15]:

"Each local planning authority delegates its planning functions to a planning committee, which acts on the basis of information provided by case officers in the form of a report. Such a report usually also includes a recommendation as to how the application should be dealt with. With regard to such reports:

i) In the absence of contrary evidence, it is a reasonable inference that members of the planning committee follow the reasoning of the report, particularly where a recommendation is adopted.

ii) When challenged, such reports are not to be subjected to the same exegesis that might be appropriate for the interpretation of a statute: what is required is a fair reading of the report as a whole. Consequently:

"[A]n application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken" (Oxton Farms, Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106106, per Judge LJ as he then was).

iii) In construing reports, it has to be borne in mind that they are addressed to a "knowledgeable readership", including council members "who, by virtue of that membership, may be expected to have a substantial local and background knowledge" (R v Mendip District Council ex parte Fabre (2000) 80 P & CR 500, per Sullivan J as he then was). That background knowledge includes "a working knowledge of the statutory test" for determination of a planning application (Oxton Farms, per Pill LJ)."

24. In R v Mendip District Council ex parte Fabre [2008] 80 P&CR 500 Sullivan J (as he then was) held at page 509:

"Whilst planning officers' reports should not be equated with inspectors' decision letters, it is well established that, in construing the latter, it has to be remembered that they are addressed to the parties who will be well aware of the issues that have been raised in the appeal. They are thus addressed to a knowledgeable readership and the adequacy of their reasoning must be considered against that background. That approach applies with particular force to a planning officer's report to a committee…it is not addressed to the world at large but to council members who, by virtue of that membership, may be expected to have substantial local and background knowledge…"

25. Similarly, Lady Hale in Morge v Hampshire County Council [2011] 1 WLR 268 at [36] said:

"Some may think this an unusual and even unsatisfactory situation, but it comes about because in this country planning decisions are taken by democratically elected councillors, responsible to, and sensitive to the concerns of, their local communities. As Lord Hoffmann put it in R (Alconbury Developments Ltd and others) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, para 69, "In a democratic country, decisions about what the general interest requires are made by democratically elected bodies or persons accountable to them." Democratically elected bodies go about their decision-making in a different way from courts. They have professional advisers who investigate and report to them. Those reports obviously have to be clear and full enough to enable them to understand the issues and make up their minds within the limits that the law allows them. But the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision for themselves. It is their job, and not the court's, to weigh the competing public and private interests involved."

26. It must also be borne in mind that there is further opportunity for advice and debate at the relevant committee meeting: see R v Selby District Council ex parte Oxton Farms Court of Appeal 18 April 1997 unreported, per Pill LJ.
27. Carnwath LJ (as he then was) dealt with the issue of alternative sites in Derbyshire Dales District Council v Secretary of State for Communities and Local Government [2010] 1 P&CR 19. He held that:

i) Alternatives may or may not be relevant depending on the nature and circumstance of the project, including its public importance and the degree of planning objections to any proposed site. The evaluation of such factors will normally be a matter of planning judgement for the decision maker, involving no issue of law [15].

ii) To say that consideration of a possible alternative site is necessarily relevant (so that the decision maker errs in law if he fails to have regard to it) is a different thing to saying that consideration of a possible alternative site is a potentially relevant issue (so that the decision maker does not err in law if he has regard to it). Legal analysis of the two propositions is materially different [17] and [35].

iii) To hold that a decision maker has erred in law by failing to have regard to alternative sites it is necessary to find some legal principle which compelled him (not merely empowered him) to do so. What is necessary is a statutory or policy requirement imposing a positive obligation to consider alternatives. If there is no such requirement whether or not to consider alternatives will remain a matter of planning judgement on the facts of the case: [36] and [37].

28. The necessity of taking a planning application back to committee was considered in the case of Kides v South Cambridgeshire District Council [2003] 1 P&CR 19 at [121], [125] and [126]:

"121. In my judgment a consideration is "material", in this context, if it is relevant to the question whether the application should be granted or refused; that is to say if it is a factor which, when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other. In other words, it must be a factor which has some weight in the decision-making process, although plainly it may not be determinative. The test must, of course, be an objective one in the sense that the choice of material considerations must be a rational one, and the considerations chosen must be rationally related to land use issues.

…

125. On the other hand, where the delegated officer who is about to sign the decision notice becomes aware (or ought reasonably to have become aware) of a new material consideration, section 70(2) requires that the authority have regard to that consideration before finally determining the application. In such a situation, therefore, the authority of the delegated officer must be such as to require him to refer the matter back to committee for reconsideration in the light of the new consideration. If he fails to do so, the authority will be in breach of its statutory duty.

126. In practical terms, therefore, where since the passing of the resolution some new factor has arisen of which the delegated officer is aware, and which might rationally be regarded as a "material consideration" for the purposes of section 70(2), it must be a counsel of prudence for the delegated officer to err on the side of caution and refer the application back to the authority for specific reconsideration in the light of that new factor. In such circumstances the delegated officer can only safely proceed to issue the decision notice if he is satisfied (a) that the authority is aware of the new factor, (b) that it has considered it with the application in mind, and (c) that on a reconsideration the authority would reach (not might reach) the same decision."

29. That was considered further in R (Dry) v West Oxfordshire District Council [2011] 1 P&CRm16 where Carnwath LJ (as he then was) said at [16]:

"Without seeking to detract from the authority of the guidance in Kides, I would emphasise that it is only guidance as to what is advisable, "erring on the side of caution". Furthermore, in that case there had been a gap of five years between the resolution and the issue of the permission. The guidance must be applied with common sense, and with regard to the facts of the particular case."

The Officer Report and Committee Decision

30. Given that the challenge here is to the officer report it is necessary to set out certain parts of it.
31. The report begins in a conventional way setting out a description of the site including reference to its current built coverage and its extent as established in the extant permission. The site planning history is then reviewed with particular focus on the grants of permission or change of use from 2003.
32. The report continues with reference to a related planning application which is not relevant to the current proceedings. It then makes it clear that members are dealing with a hybrid application which sought part outline planning permission which included up to 200 dwellings and part full planning permission; the latter being for a phase 1 residential development comprising 108 dwellings on the eastern part of the site.
33. There is then an extensive section on consultation and representations on the development before the relevant planning policies are set out. That is followed by a section on the Habitat Regulations.
34. Section 8 of the report itemises the key planning considerations. Section 9 proceeds to consider the policy framework for consideration of the application. Within that section there is a discussion of the overall policy position and the presumption in favour of sustainable development set out within the National Planning Policy Framework (NPPF). Consideration was given as to whether what was proposed was an exception to the generally restrictive policy on the construction of new buildings in the greenbelt in that the proposal was partial redevelopment of previously developed land which, arguably, would not have a greater impact on the openness of the greenbelt and the purpose of including land within it than the existing development. The conclusion reached was that the development proposed was inappropriate development in the greenbelt. Section 9 concluded with paragraph 9.14:

"This proposal is for a major development that will have an impact on the area. Impacts can be both positive and negative and the remainder of the report will assess the impacts of the proposed development. Regard will also be had to the extant planning permission granted in June 2011 under reference RU.05/0538."

35. There is then an extensive section of the report which deals with matters that have not been at issue in the current proceedings.
36. Greenbelt considerations were dealt with in section 29 of the report. The discussion on very special circumstances began at 29.11. The report set out what the applicant considered appropriate as a set of very special circumstances and the evaluation of the officers upon it as follows:

"29.11.3. In this case the applicant considers that the proposal does not comprise inappropriate development but has nevertheless put forward a set of very special circumstances if a different conclusion is reached during the consideration of the application. In summary the applicant's case for very special circumstances include the following matters:

1. The contribution the site will make to employment growth and economic prosperity, regionally, nationally and internationally;

2. The provision of housing including the early delivery of housing to meet housing requirements and housing need for the affordable housing element;

3. The potential for living and working in close proximity;

4. The principle of development has been established by the existing planning permission;

5. Policy LP08 of the LPCS identifies the site for the provision of a high quality mixed use community;

6. The proposal will provide supporting facilities on-site and green infrastructure, will improve biodiversity on the site, improve health through the provision of recreation opportunities, will not result in any detriment to matters such as heritage, air quality, noise and vibration, lighting, water quality and will incorporate sustainable drainage, sustainable construction elements, access for the disabled, a package of transport measures and waste minimisation.

29.11.4. Points 3 and 4 from the above list are not considered to comprise very special circumstances. Similarly the majority of the matters listed under point 6 are not considered to be very special circumstances as compliance with these matters are not particularly special as these relate to the normal planning considerations for applications. The one consideration which could be considered as a very special circumstance would be the existence of the main line railway station which serves the site and also the proposed improvements to the rail service and railway station which serves the site and which is proposed to be the subject of improvements secured as part of this application. With regard to point 5, whilst it is considered that the proposed development would not conflict with any of the criteria listed in LPCS Policy LP08 (submission version) it is considered that only very limited weight could be given to this matter as the LPCS has not yet been examined and a number of substantial objections remain to this policy. With regard to point 1, it is acknowledged that the provision of employment floorspace and the development as a whole would contribute to employment growth and economic prosperity, but this would also be the case for the existing extant permission. Whilst this is clearly a beneficial outcome of the proposed development it is not considered to be very special circumstance.

29.11.5. With regard to point 2, as noted in paragraph 9.6 above the Council is only able to demonstrate a 5 year housing land supply with the inclusion of the residential provision on this application site. Without the proposed housing provision, the Council will not be able to demonstrate a 5 year housing land supply. This proposal would provide an achievable and deliverable phased supply of dwellings. Therefore whilst the provision of housing on this site could not on its own comprise very special circumstances to outweigh the harm to the Green Belt and any other harm (in accordance with the Ministerial Statement referred to in paragraph 29.10.2) it would be possible for this matter to contribute to other matters which in combination are considered to comprise very special circumstances.

29.11.6. This site is unique within Runnymede as it is the only self-contained previously developed major site which is served by an existing mainline railway station. No other sites within the Borough can make this claim. The existence of a mainline railway station will provide a significant opportunity for sustainable travel by the new residents and employees of the site. In addition substantial improvements to the rail service and the station are to be secured by this proposal and these will not only benefit the proposed new users of the site but the wider general public who will be able to use this enhanced service.

29.11.7. The site is also a previously developed site with a large number of substantial industrial buildings and extensive areas of hard surfacing forming roads and car parking areas spread across the site. The existing buildings vary in size, bulk and height and the majority of this site has a densely developed appearance. The existing buildings are unattractive in their appearance resulting from their utilitarian form and the former military use of the site. Furthermore there are above ground and unsightly pipes which proliferate the site. Whilst the eastern part of the site has loosely positioned buildings that are still extensive areas of roads leading to these buildings and hard surfacing facilitating their use. The eastern-most part of the site before the woodland area (which would be retained), is characterised by an area of made-up ground which is used for storage and is now surrounded by scrub. Trees have lawfully been removed from this area around the made ground although boundary trees and planting retained. As advised in section 24, none of the trees on the site are covered by a Tree Preservation Order and none of the trees are individually of importance.

29.11.8. The contribution this site will make to housing delivery to meet the housing need and ensure a 5 year housing land supply, the fact that this site is a previously developed site with no prejudice to open land outside of the site and the fact that this site is served by an existing main line railway station and to which improvements will be made to the station and service are, in combination, considered to comprise very special circumstances which outweigh the substantial weight to be given to the harm to the Green Belt by reason of the inappropriateness of the development and the other harm resulting to openness. In terms of Green Belt policy it is therefore considered that very special circumstances exist which justify the granting of planning permission for the development proposed."

37. The next section of the report was entitled 'Matters raised in letters of objection'. It dealt with those matters that had not been raised elsewhere in the report. That section included the following:

"…

The reserve sites are more sustainable than this site – whether there is a preferable site for development, or preferable use of an existing site is not a material planning consideration. Each application has to be assessed on its own merits to judge whether it produces acceptable, sustainable development.

…

Loss of existing businesses from the site – extant planning permission already exists for the redevelopment of the site and this is a matter for the owners and occupiers of the existing and proposed buildings.

…

Effect of the increase in jobs on the local housing market – extant planning permission already exists for the proposed development which would have resulted in a similar number of increase in jobs on the site, the introduction of housing on the site therefore has the potential to assist with the need and demand for housing in the local area and from any new employees on the site."

38. In conclusion the report said:

"31.2. The planning considerations section of this report has assessed all of the material planning matters relating to this application in detail. The conclusion reached is that although the proposed development would comprise inappropriate and harmful development in the Green Belt, very special circumstances are considered to exist to outweigh the identified harm. In summary these are the existence of the mainline railway station serving this site, the site is previously developed land and the contribution this site will make to housing delivery to ensure a 5 year housing land supply is maintained in the Borough.

…

31.5. In light of the very special circumstances which exist in this case and the lack of any other significant and demonstrable harm resulting from the proposed development it is considered that the proposed development is acceptable and would comply with the guidance in the NPPF and the relevant saved South East Plan and Local Plan policies."

39. As a result the recommendation was to grant planning permission subject to referral to the Secretary of State and subject to the prior completion of a legal agreement under section 106 of the Town and Country Planning Act 1990.
40. On 27 March 2014, DPDS, planning consultants for the claimant, wrote to the individual members of the committee. In that letter they drew attention to parts of the officer report and, in particular, to those sections which dealt with the unmet need for housing in Runnymede and the contention, which they disputed, that the site was required to enable the Council to demonstrate a five year housing supply. They pointed out that from the 2013 Strategic Housing Land Availability Assessment (SHLAA) there was a 5.88 year housing supply, excluding the DERA North site. The only basis upon which the site could be included within the five year supply was if it was considered against the housing requirements set out in the Council's emerging LPCS of 220 dwellings per annum which was drawn from the defendant's Housing Context Technical Paper prepared to support the emerging Local Plan. The author of the letter, Mr Durrant, advised that it would be "very unsafe indeed" to rely on the Technical Paper.
41. An addendum to the report was subsequently issued prior to the committee meeting which dealt with comments that had been raised by objectors, including the claimant, on the application and which were not dealt with in the substantive report. The Addendum did not deal with the contents of the letter from DPDS dated 27 March.
42. At the meeting on the 2 April the members resolved to grant planning permission, subject to referral to the Secretary of State and the execution of an agreement under section 106 Town and Country Planning Act.
43. On 19 May 2014, Allen & Overy LLP, on behalf of the claimant, wrote to the defendant asking that the application be taken back to committee to enable it to reconsider the resolution to grant permission in the light of material changes in circumstance. That request was based on the case of Kides (supra). The letter placed emphasis upon the recently received report of the Inspector on the LPCS which had been issued on 29 April 2014 (set out above).
44. On 5 June 2014 the defendant responded to the Allen & Overy letter. It said that it would not take the application back to committee because there was no need. It said:

i) in the officer report dated 2 April very little weight had been placed upon the draft LPCS; and

ii) there was no need to consider a review of greenbelt boundaries given that the Council had approached the application on the basis that the site was in the greenbelt and that very special circumstances justified overriding the harm to the greenbelt and the site would remain in the greenbelt once the development had been completed.

45. On 12 August 2014 planning permission was issued.
46. A delegated authority report was prepared that day dealing with the two conditional matters which had to be satisfied before the Head of Planning was authorised to grant planning permission. It dealt also with the contention, in the letter from Allen & Overy, that there had been other material changes in circumstance since the resolution to grant planning permission. All the matters asserted by Allen & Overy to constitute a material change in circumstance were rejected.

Grounds

47. At the hearing the grounds of challenge were reduced by Mr Katkowski QC, acting for the claimant, and, to a degree, reformulated. As a result the challenge is agreed to be on the following grounds:

i) whether the officer report contained a material misdirection on the issue of alternative sites?

ii) whether the officer report contained a material misdirection on the five year housing land supply?

iii) whether the defendant's decision not to take the application back to committee after the resolution to grant planning permission in April but before the issue of the permission on 12 August was an error of law?

48. All other grounds were expressly abandoned by the claimant. This judgment proceeds, therefore, to consider the grounds that now represent the claimant's challenge.

Ground One: Did the Officer Report Contain a Material Misdirection on Alternative Sites?

49. Mr Katkowski submits that the issue of reserve housing sites was obviously material. They were something for the decision maker, namely the members, to grapple with. The claimant relies upon Derbyshire Dales (supra).
50. Further guidance on materiality can be found in the case of Holder v Gedling Borough Council [2014] JPL 1087 at [7] where Maurice Kay LJ said:

"The disputed matters on this appeal are not rendered material considerations because the statute has expressly declared them to be so. Their materiality, if established, is based on their potential to have a legitimate bearing on the ultimate decision."

51. The reserve housing sites were particularly material here where the decision maker was dealing with inappropriate development in the greenbelt. Both the claimant and the LPCS Inspector had highlighted that the consideration of alternative housing sites that were not within the greenbelt was material for the defendant to consider.
52. For the officer report to say that "whether there is a preferable site for development, or preferable use of an existing site is not a material planning consideration. Each application has to be assessed on its own merits to judge whether it produces acceptable, sustainable development" is thus a misdirection.
53. The claimant rejects the defendant's submission that the decision maker, in considering the issue of alternatives, had to consider an alternative to the mixed use development proposal. That was because the residential use in the current application was the only new element of development over and above that which had been permitted under the extant planning permission. In any event, the report did not say that alternatives were not relevant because they were not mixed use sites. The defendant's submissions did not fit with the tenor of the officer report.
54. By 2 April 2014 it was clear that other residential sites were a material consideration. The subsequent report from the LPCS Inspector vindicated the claimant's submission and gave added force to the issue of alternative sites.
55. The defendant submits that the report on the planning application was to the members of Runnymede Borough Council's planning committee. They were familiar with the fact that 79 per cent of their district was land within the greenbelt. They were familiar also with the DERA site. It was a major site within the defendant's administrative area and had been allocated for redevelopment for many years.
56. Miss Lieven QC, for the defendant, submits that the claimant's argument rests on an attempt to set aside the planning history and extant planning permission and to suggest that members should focus on the residential element alone. That is an inappropriate approach. It is evident from a fair reading of the officer report, as a whole, that a major part of the justification for the grant of planning permission were the benefits that flowed from a mixed use development.
57. There were no other sites which could replicate the mixed use development on the application site: when members were advised that alternatives were not material that was in fact the case.
58. The LPCS Inspector was not considering mixed use development but the Council's broad approach to housing provision in the LPCS.
59. The defendant relies upon the judgment of Carnwath LJ in Derbyshire Dales (supra) where he says:

"14. ...There has also been some debate as to how far, if alternative sites are deemed relevant at all, it is necessary for those relying on the argument to identify specific alternatives.

15. It is not surprising that such challenges have generally failed. Common sense suggests that alternatives may or may not be relevant depending on the nature and circumstances of the project, including its public importance and the degree of the planning objections to any proposed site. The evaluation of such factors will normally be a matter of planning judgment for the decision-maker, involving no issue of law."

He continued in [17]:

"17. …It is one thing to say that consideration of a possible alternative site is a potentially relevant issue, so that a decision-maker does not err in law if he has regard to it. It is quite another to say that it is necessarily relevant, so that he errs in law if he fails to have regard to it.

18. For the former category the underlying principles are obvious. It is trite and long-established law that the range of potentially relevant planning issues is very wide (Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281); and that, absent irrationality or illegality, the weight to be given to such issues in any case is a matter for the decision-maker (Tesco Stores Ltd v Secretary of State [1995] 1WLR 759, 780). On the other hand, to hold that a decision-maker has erred in law by failing to have regard to alternative sites, it is necessary to find some legal principle which compelled him (not merely empowered) him to do so."

60. There is nothing which compels a decision maker to have regard to alternatives in either statute or policy. It was, therefore, a matter of planning judgment as to whether alternative sites had to be taken into account. It was reasonable for the officer to conclude that alternatives were not relevant and advise members accordingly.
61. The interested party on this ground adopts the submissions on the part of the defendant.

Discussion and Conclusions

62. The members had before them an application for a large mixed use development. The officer's report considered the impacts of the development as a whole, both positive and negative. The residential element was but one part of the large development proposed.
63. Applying the judgment of Carnwath LJ in Derbyshire Dales at [18] for the claimant to succeed on its alternative sites argument it is necessary, firstly, to find some legal principle which compels the decision maker (and not merely empowers him) to have regard to alternatives. If such principle can be identified it is then necessary to ask the second question; what is the alternative to be considered? Should an alternative be to the development as a whole (as the defendant and interested party submit) or should it be to one part of the mixed use package, namely residential? Third, if it is appropriate to have regard to residential sites elsewhere, and that was not done, was that an omission of a material consideration? In other words could housing sites elsewhere have had a legitimate bearing on the ultimate decision and were they so obviously material that a decision maker had to grapple with them? If none of the above applied then it is a matter of planning judgment as to whether alternative sites are relevant.
64. Adopting that approach there is nothing in the Town and Country Planning Act or the Planning and Compulsory Purchase Act which compels a decision maker to have regard to alternatives. Neither is there anything in planning policy which expressly or impliedly requires the decision maker to consider alternatives. It is axiomatic that, generally, the fact that other land exists upon which the development proposed would be more acceptable for planning purposes does not justify the refusal of planning permission upon an application site. The fact that the decision maker here was dealing with inappropriate development in the greenbelt does not, in itself, require the consideration of alternative sites. Such an approach would be to ignore the site specific characteristics of the application site, namely, the previously developed land aspect of the application site. Further, no other site was suggested by the claimant or any objector as an alternative to the development proposal as a whole. Accordingly, I can see no legal principle that compels the consideration of alternative sites. The officer's advice was reasonable, therefore, as a matter of planning judgement, in the circumstances of the case.
65. If, contrary to my decision on the first question, it is relevant to consider alternatives, the issue then is alternative to what? I can see no basis to constrain the alternatives simply to one element of a mixed use development proposal. There is no policy basis for doing so.
66. The claimant submits that the residential component is the only relevant element of the development for which an alternative needs to be sought as every other element of development has planning permission under the extant permission. Further, it was the residential element of the proposed development that was harmful to the greenbelt. As the defendant submits to proceed on that basis would be a misunderstanding of what the members had to consider. They had to consider a large mixed use development. It was the impact of, and benefits of, the development as a whole which they had to determine and not simply the residential aspect of it. Not only that, but the development had to be considered against the NPPF with its increased emphasis on sustainable development. It was in that context that members had to consider whether there were very special circumstances for the development as a whole to be permitted. They were not considering whether the residential development only should be permitted. The only sensible approach to alternative sites, therefore, if it is necessary to embark on that route at all, was to consider an alternative to the development as a whole. None was suggested.
67. The reserve housing sites were not alternatives to the application which the members had to determine. The decision, therefore, was one of planning judgement to be made on the part of the planning officer. It cannot be said, in all the circumstances of this case, that it was unreasonable to advise the members that the reserve sites were not a material consideration.
68. The claimant submits that the defendant's submissions were not in line with the content of the officer report: that dealt with very special circumstances in section 29, paragraph 11. In 29.11.3 the report itemised the points made by the applicant as constituting very special circumstances. The points about employment growth and economic prosperity, the potential for working and living in close proximity and the principle of development having been established through the extant permission were rejected as very special circumstances. It was only the residential aspect of the proposed development which featured as a very special circumstance. The claimant submits that it was not correct to say, therefore, that alternative sites for residential development were not material. I reject that submission. Such an approach is to separate out one component of the mixed use development and to consider it in a discrete way when there is no justification for so doing: there is no policy requirement of disaggregation of the development proposed in the circumstances.
69. The claimant maintained that its approach was supported by the LPCS Inspector who expressed similar concerns to those articulated by the claimant in his comments about the reserve sites. He said at [39]:

"Policy LP02 identifies 5 reserve sites 'which may be required to meet long-term housing needs'. Although some of the sites are comparatively small, it is nevertheless my opinion that the Council should have given greater consideration to the role that these sites could play in helping to address the unmet housing needs in the short and medium term."

70. I do not accept the claimant's submission. It elides two distinct processes. The LPCS Inspector's comments were made in the context of his deliberation of housing provision across the borough. He was considering the quantitative housing provision within the submission draft of the Local Plan before him and over the Plan period. He was not concerned with an individual planning application for a large mixed use development. His exercise was an entirely different one to that before the members of the defendant authority. His comments need to be seen in that context rather than of general application.
71. Accordingly, this ground fails.

Ground 2: Did the Officer Report Contain a Material Misdirection on the Issue of Five Year Land Supply?

72. The claimant submits that the officer report advised the members four times that the defendant was only able to demonstrate a five year housing supply with the inclusion of DERA North as one of its housing sites. That was plainly wrong.
73. The housing topic paper of July 2013 was prepared in the context of the Runnymede LPCS. The topic paper contained, at table 5, a summary of the Council's evidence base and the housing target that supported. The table used 220 dwellings per year as an appropriate target over the plan period. 180 dwellings were to contribute to the supply from 2015/16 until 2017/18. The five year supply figure was 1,496 which gave a supply in excess of 6.5 years. Without the DERA North site the supply fell to below six years but there was no basis for saying, as the officer report did, that the five year supply required the inclusion of the DERA North site.
74. After the planning application was made in August 2013 objections were submitted by DPDS, acting for the claimant, in October. Within the objection document DPDS pointed out that, on the basis of the annual requirement that was used in the Draft LPCS, and based upon the housing trajectory for the borough there was an oversupply of housing land. If the DERA North site was removed from the supply that reduced to 5.7 years and there was still an oversupply. Alternative housing sites existed with a range of services and facilities which were preferable in sustainability terms to DERA North.
75. In their representations to the Pre-Submission LPCS, DPDS asserted that the six reserve sites identified in the LPCS could yield 370 new dwellings over the plan period. The six sites were outside the greenbelt and located on the edge of sustainable settlements. The exercise that had been carried out under the heading 'Assessment of Reasonable Alternative Strategic Sites' by consultants acting for the DERA proposal failed to consider the reserve sites because they set an artificial threshold of sites for their examination that would produce 300 houses or were of a minimum of 10 hectares as the basis for their search. As a result they had excluded consideration of the reserve sites.
76. When DPDS submitted their letter of 27 March 2014, in response to the publication of the officer report on the DERA planning application, they repeated their point that what the report said was inaccurate on the five year housing supply. As such there was no basis for a conclusion that housing need was a valid component for very special circumstances.
77. The claimant's consultants had, therefore, given the defendant every opportunity to correct the position. In compiling the report, and subsequently, the defendant knew that the claimant was saying that the site was not needed to make up the five year housing land supply but the defendant repeated that the DERA site was needed. As a result, the advice to the members was simply wrong. It was a material misdirection and an error of law. It was one of three identified very special circumstances and wrapped around with advice to members as to the importance of a five year housing supply.
78. The defendant submits that it is clear from the advice in the NPPF that a Local Planning Authority has to show a robust five year housing land supply. If it cannot, then the presumption in favour of sustainable development under paragraph 14 of the NPPF comes into play. That says,

"For decision taking this means:

approving development proposals that accord with the development plan without delay; and

where the development plan is absent, silent or relevant policies are out of date, granting permission unless:

any adverse impacts of doing so would significantly and demonstrably outweigh the benefits when assessed against the policies in the Framework taken as a whole; or

specific policies in this Framework indicate development should be restricted."

Footnote 9 to paragraph 14 indicates that Green Belt would be one such restrictive policy.

79. In the DPDS letter of 27 March 2014 Mr Durrant was making strong representations on behalf of the claimant that it was unsafe to rely on the figure of 220 dwellings per annum. That was repeated, as was the contention that the defendant had more than a five year supply, in the pre-action protocol letter. At no time, even in the claimant's skeleton argument, was there a hint of the claimant's current argument. Directly opposite to how the claimant previously formulated its case the claimant now places reliance upon an annual net housing figure of 220 dwellings.
80. Notwithstanding that, the officer report is robust because:

i) Calculation of the five year supply is not a precise science. Sites can be delayed in coming forward. There is an element of fluidity within the supply. What should be within a five year appraisal is a matter of judgment.

ii) The DPDS letter refers to a 5.25 year housing land supply which is different from the figure produced by Mr Katkowski. That shows how figures change and can change rapidly.

iii) The Technical Paper of July 2013 was not a five year supply calculation as at April 2014 when the members were considering the planning application. It was dealing with figures that were about one year out of date. The detail contained within the Technical Paper would not be expected to be within the officer report. The figures in July 2013 represent a snap shot of a fluid situation. The fact that the final calculation might be different does not mean that the defendant was not entitled to rely on DERA North as an important component of its housing land supply.

iv) On the requirement side the objectively assessed need was 595 dwellings a year. The figure of 220 was some 37 per cent of that. The NPPF says that the starting point is to take the objectively assessed need which would mean 595 dwellings per annum. That would be wrong in the defendant's administrative area because of the greenbelt and further constraints. However, it illustrates that the defendant struggles with its housing land position. The defendant has to be cautious about its five year supply given the uncertainties on the housing requirement side.

v) As the LPCS Inspector observed, there was a significant shortfall against the objectively assessed need. The Inspector found that further emphasised the need for the defendant to have fulfilled its duty to cooperate by seeking to meet a greater proportion of its housing need either within the borough or elsewhere in an appropriately defined housing market area.

81. To the extent that those submissions are not contained within the officer report the defendant makes two points. First, one would not expect that degree of detail to be in the officer report and, second, it had, understandably, taken Mr Durrant's letter of 27 March to be making a different point to that which the claimant now makes.
82. The interested party relies upon the case of R (City and District of St Albans) ex parte Hunston Properties [2014] JPL 599 where the Court of Appeal made it clear that, prior to adoption of a local plan, housing needs assessment was done, for the purposes of paragraph 47 and 49 of the NPPF, on an unconstrained basis. There was, therefore, a significant shortfall of housing land within the defendant's administrative area at the relevant time. If the unconstrained figure of 595 dwellings per annum was taken then the only reasonable conclusion would be that there was a need for the DERA North site. It was difficult to see, therefore, how the claimant could submit that the statement in the officer report was significantly misleading.
83. The claimant replied by contending that the interested party's submissions can only go to the issue of discretion. They do not go to the content of the officer report. No figures on the basis of objectively assessed need are set out within the officer report. There was no evidential basis for the contention in the officer report that the DERA site made the critical difference to a five year supply. The contribution of the DERA North site would be a drop in the ocean with regard to the scale of the shortfall that would apply if the objectively assessed need had been used as the basis of approach.

Discussion and Conclusions

84. Under the NPPF an assessment of future housing requirements is required for the consideration of an application for residential development. Paragraphs 47 to 49 of the NPPF read as follows:

"47. To boost significantly the supply of housing, local planning authorities should:

use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period;

identify and update annually a supply of specific deliverable sites sufficient to provide five years work of housing against their housing requirements with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land. Where there has been a record of persistent under delivery of housing, local planning authorities should increase the buffer to 20% (moved forward from later in the plan period) to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market for land;

identify a supply of specific, developable sites or broad locations for growth, for years 6-10 and, where possible, for years 11-15;

for market and affordable housing, illustrate the expected rate of housing delivery through a housing trajectory for the plan period and set out a housing implementation strategy for the full range of housing describing how they will maintain delivery of a five-year supply of housing land to meet their housing target; and

set out their own approach to housing density to reflect local circumstances.

48. Local planning authorities may make an allowance for windfall sites in the five-year supply if they have compelling evidence that such sites have consistently become available in the local area and will continue to provide a reliable source of supply. Any allowance should be realistic having regard to the Strategic Housing Land Availability Assessment, historic windfall delivery rates and expected future trends, and should not include residential gardens.

49. Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites."

85. The meaning of those paragraphs was considered by the Court of Appeal in City and District Council of St Albans v Hunston Properties Ltd (supra). The point in issue was summarised at [17]. That reads:

"In the Section 288 proceedings it was argued by Hunston that the inspector had erred by failing to identify the "full objectively assessed needs" for housing in the area, as required by the first bullet point in paragraph 47 of the Framework, and had failed, in this situation where there was no new Local Plan containing housing requirements, to recognise the shortfall between those needs and the supply of housing sites. Had she adopted the correct policy approach, she might have found that very special circumstances, sufficient to outweigh the contribution of the appeal site to the Metropolitan Green Belt, existed. Thus she erred in law."

86. Sir David Keene in giving the judgment said at [26]:

"…it seems to me to have been mistaken to use a figure for housing requirements below the full objectively assessed needs figure until such time as the Local Plan process came up with a constrained figure."

87. He continued:

"27. It follows from this that I agree with the judge below that the inspector erred by adopting such a constrained figure for housing need. It led her to find that there was no shortfall in housing land supply in the district. She should have concluded, using the correct policy approach, that there was such a shortfall. The supply fell below the objectively assessed five year requirement.

28. However, that is not the end of the matter. The crucial question for an inspector in such a case is not: is there a shortfall in housing land supply? It is: have very special circumstances been demonstrated to outweigh the Green Belt objection? As Mr Stinchcombe recognised in the course of the hearing, such circumstances are not automatically demonstrated simply because there is a less than a five year supply of housing land. The judge in the court below acknowledged as much at paragraph 30 of his judgment. Self-evidently, one of the considerations to be reflected in the decision on "very special circumstances" is likely to be the scale of the shortfall.

29. But there may be other factors as well. One of those is the planning context in which that shortfall is to be seen. The context may be that the district in question is subject on a considerable scale to policies protecting much or most of the undeveloped land from development except in exceptional or very special circumstances, whether because such land is an Area of Outstanding Natural Beauty, National Park or Green Belt. If that is the case, then it may be wholly unsurprising that there is not a five year supply of housing land when measured simply against the unvarnished figures of household projections. A decision-maker would then be entitled to conclude, if such were the planning judgment, that some degree of shortfall in housing land supply, as measured simply by household formation rates, was inevitable. That may well affect the weight to be attached to the shortfall.

30. I therefore reject Mr Stinchcombe's submission that it is impossible for an inspector to take into account the fact that such broader, district-wide constraints exist. The Green Belt may come into play both in that broader context and in the site specific context where it is the trigger for the requirement that very special circumstances be shown. This is not circular, nor is it double-counting, but rather a reflection of the fact that in a case like the present it is not only the appeal site which has a Green Belt designation but the great bulk of the undeveloped land in the district outside the built-up areas. This is an approach which takes proper account of the need to read the Framework as a whole and indeed to read paragraph 47 as a whole. It would, in my judgment, be irrational to say that one took account of the constraints embodied in the polices in the Framework, such as Green Belt, when preparing the local plan, as paragraph 47(1) clearly intends, and yet to require a decision-maker to close his or her eyes to the existence of those constraints when making a development control decision. They are clearly relevant planning considerations in both exercises."

88. The starting point for an assessment of the housing land situation is thus the full objectively assessed housing need as a requirement until a Local Plan process comes up with a constrained figure.
89. I entirely accept, as the defendant submits, that the annual report on housing, required under paragraph 47 of the NPPF, will be updated for a planning application or planning appeal so that the decision maker is able to take the decision before him on the most up to date evidence. That point was emphasised by Hickinbottom J in Stratford on Avon District Council v Secretary of State for Communities and Local Government [2013] EWHC 2074 (Admin) at [42]. According to the defendant's own summary grounds of resistance (paragraph 30) and skeleton argument (paragraphs 36 and 37) the most up to date information was in the Housing Context Technical Paper (Technical Paper).
90. The full objectively assessed housing need figure derived from the Technical Paper was 595 dwellings per annum. The 220 figure apparently used by the defendant took account of the constraints within the defendant authority, of greenbelt and SAC. That figure was some 37 per cent of its full objectively assessed need and, at the time of the report to committee, had not been independently tested.
91. When the report to committee was prepared the LPCS and its policies were described as having the potential of being a material consideration. The weight, if any, to be attached to any policy within the LPCS was said to be a matter for the decision maker and may be different in the consideration of each policy in relation to any development scheme proposed. The report continued, "in this particular case reference will only be made to a policy contained in the submission version of the LPCS where it is considered necessary".
92. Within section 29.11 of the report, which deals with very special circumstances, when housing issues are dealt with no reference is made to the LPCS. As such it is a reasonable inference that the officer attached no weight to it and it can reasonably be inferred that the same applied to the decision makers.
93. Paragraph 29.11.5 set out that the defendant was only able to demonstrate a five year housing land supply with the inclusion of residential provision on the application site. Without the proposed housing provision, the paragraph continued, the Council would not be able to demonstrate a five year housing land supply. The proposal would be able to provide an achievable and deliverable phased supply of dwellings. Therefore, whilst the provision of housing on the site could not on its own comprise very special circumstances to outweigh the harm to the greenbelt or any other harm it would be possible for this matter to contribute to other matters which in combination are considered to be very special circumstances.
94. The report continued at 29.11.8:

"The contribution this site will make to housing delivery to meet the housing need and ensure a five year housing supply…are, in combination, considered to comprise very special circumstances which outweigh the substantial weight to be given to the harm to the greenbelt by reason of the inappropriateness of the development and the other harm resulting to openness."

95. The report itself, perhaps unsurprisingly, is silent as to the evidence upon which it based its conclusions on five year housing land supply.
96. On the basis that the conclusions in the officer report derive from the Technical Paper, as the most up to date information on housing, I do not see how the officer was able to report that the Council was only able to demonstrate a five year housing land supply with the inclusion of the residential provision on this application site as he did in 29.11.5. If, as the claimant points out, that conclusion was based upon the 220 requirement, then the supply is sufficiently in excess of five years for the residential component within the application site not to be required as a necessary component of a five year figure.
97. If, on the other hand, the interested party is correct in its submissions that the appropriate figure to be taken for requirement is the 595 as the full objectively assessed need then there is a significant shortfall of housing land within the district. But, in that circumstance also, the 200 dwellings proposed on the application site would not be a tipping point in relation to a five year housing supply.
98. As it is, in the absence of any evidence to justify the conclusion in paragraph 29.11.5, and taking into account that the defendant's case is that the most up to date information at the time was contained within the Technical Paper (defendant's skeleton paragraph 36) I have to conclude that in relation to the five year housing supply there was a material misdirection within the officer report. I entirely accept the submissions on the part of the defendant that calculations of a five year supply are not an exact science and, in its nature, housing supply is fluid. However, applying what was seen as the "realistic housing figure" of 220 units per annum does not produce a five year supply conclusion proximate to that contained within the officer report.
99. Accordingly this ground succeeds.

Ground Three: Was There an Error of Law in the Defendant's Decision Not to Take the Application Back to Committee After the Resolution to Grant Planning Permission in April 2014 But Before the Issue of the Permission on 12 August?

100. Mr Katkowski accepts that there is a degree of overlap between this ground and ground one. He submits that the claimant had criticised the alternative site assessment prepared by consultants for the interested parties which had taken as its threshold a development of 300 houses or 10 hectares in size and measured it against the then housing requirement of 161 dwellings per annum. When the LPCS Inspector reported on 29 April he agreed with their criticisms. He said, at paragraph 38:

"My concerns relate more to the details in the Assessment which was published in 2012. Firstly the Report is prepared on the premise that the Council is seeking to provide 161 new dwellings a year, as opposed to the 220 referred to in policy LP02; and secondly, bearing in mind the significant shortfall in meeting housing need, there is insufficient justification as to why the minimum site thresholds have been set at 10ha and 300 dwellings. Smaller sites have only been considered 'in combination with other identified sites where these immediately adjoin one another'."

101. Having had sight of his report, the claimant wrote to the defendant and asked for the report to go back to members. The claimant contends that the housing figures used in reporting the planning application were those embedded in the Local Plan. The officers decided that the LPCS Inspector's report was not a new material consideration because no weight had been given to the LPCS in the officer report.
102. The question though was whether the LPCS Inspector's report could have tipped the balance to some extent. The claimant relies upon paragraphs 121, 125 and 127 in Kides. The important point here, it is submitted, was that the failure to take the report back was one which denied the members the opportunity to consider whether housing needs could be met in other ways and/or in other boroughs. The entire construct of the defendant's housing policy had been based upon emerging policy in the LPCS upon which the inspector had reported. The report was, therefore, material to consider.
103. The defendant submits that if I determine ground one in the defendant's favour then ground three falls away. It can only matter if the LPCS Inspector's report on alternatives is relevant to development control.
104. Kides required a judgement to be made as to whether the LPCS Inspector's report would, in fact, tip the balance. [125] of the judgment has to be read with [121]. Whether something was a material consideration was a matter of judgement for the officers.
105. The case of Dry at [16] refers to all the relevant paragraphs in Kides. It is not just giving guidance on a common sense practical application. It is emphasising that the application of the principle is to be applied with common sense and with regard to the particular facts of the case.
106. The same can be said of R (Hinds) v Blackpool Borough Council [2012] EWCA Civ 466. Paragraphs [33] to [35] do not set out any contradiction or departure from the principle in Kides. They are an exhortation to use common sense.
107. The LPCS Inspector's report was addressing an entirely different issue to one of development control. It was no part of his remit to consider very special circumstances. If the members had known that the LPCS Inspector had found that the defendant had failed in its statutory duty to cooperate and made other observations about the housing provision it would have made no difference or tipped the balance in the decision making. As a result there has been no error of law in not taking the application back to committee.
108. The interested party adopts those submissions and contends that a planning balance had to be struck between harm to the greenbelt and very special circumstances. There were three elements to the latter. They were contribution to housing need, previously developed land and proximity to the railway.
109. The LPCS Inspector's report was clearly not relevant to the last two factors. On the first, the site would contribute to housing need. On the five year housing land supply the inspector was saying that the 220 figure needed to be robust and justified and that there was a significant shortfall. In short, the inspector was saying that the five year supply was worse than the defendant thought. There was, therefore, no part within the LPCS Inspector's report which would have affected the planning balance.

Discussion and Conclusions

110. The key issue is whether the LPCS Inspector's report was a material consideration that could have tipped the balance in the decision making process to some extent. As Jonathan Parker LJ put it in Kides was it a factor in the decision making process of some weight? It does not have to be determinative and the issue is one to be judged objectively.
111. The LPCS Inspector's report of 29 April 2014 was plainly a new consideration. It had not been received by the defendant on 2 April. The claimant does not suggest that the defendant could reasonably have discovered or anticipated its contents at that time. The question that follows on is, was the LPCS Inspector's report a material consideration such as to require the defendant to refer the matter back to committee?
112. The LPCS Inspector was conducting an examination into the emerging LPCS. His task was to apply the statutory test to that exercise and come to a judgment as to whether what was proposed across the borough by the defendant was sound. Part of that exercise was to consider housing provision across the borough and the adequacy or otherwise of, the requirement for, and supply of, housing. It was no part of the Inspector's remit to consider whether very special circumstances were or were not made out on the DERA North site. Part of his exercise was to consider whether it was or was not necessary to make alterations to the greenbelt boundaries within the defendant's administrative area. That is a matter to be judged across the entire area. In other words, his exercise was a more strategic and spatial one than that of the committee determining the DERA North application on the basis of the current policy application to the DERA North site and in the then current housing situation. If the DERA North site was to be taken out of the greenbelt then very different considerations would be in play in considering a planning application for the site.
113. I accept the submissions made by the defendant and the interested party that the LPCS Inspector had a different task to that of the planning committee: he was addressing plan making considerations rather than an individual planning application with the detail necessary to determine whether planning permission should be forthcoming or not on the application site. Although the Inspector was considering the issue of housing requirement and housing supply, that was in a borough wide context and was an exercise which necessarily had to be prospective because of the plan making process with which he was engaged.
114. In my judgment, the LPCS Inspector's report was not a material consideration that would tip the balance in some way or a material consideration in the sense that it required the defendant to take the planning application back to committee. In Kides there was a five year gap between the resolution to approve and taking the planning application back. In the context of that case it was found that there was no new material consideration. Although there is no temporal test as to when it is necessary to take a report back to committee and that decision is to be judged solely on the issue of materiality, in the circumstances here, in my judgment, the Inspector's report would have made no difference to the decision reached.
115. It follows that ground three fails.
116. It follows that, unless it is appropriate for the court to exercise its discretion, the planning permission granted must be quashed on ground two. I turn, therefore, to consider the issue of discretion.

Discretion

117. The defendant submits that the planning permission should not be quashed if the error on its part would have made no difference to the ultimate decision made. The defendant relies on the case of Simplex GE Holdings Ltd v Secretary of State for the Environment [1988] 3 PLR 25.
118. The claimant submits that it is impossible here to say that members would have reached the same conclusion. The reality is that in any redetermination the planning application would be considered against the judgment in Hunston (supra). Not only is there the issue of objectively assessed need there are issues as to the scale of the housing shortfall, the amount that the residential part of the DERA North site would contribute towards any shortfall, the harm to the greenbelt, and the fact that the contribution of the application site would be a drop in the ocean. They were all matters for members to grapple with.

Discussion and Conclusions

119. The only error that I have found on the part of the defendant is in relation to its approach to the five year housing supply. I have found that the advice that was given to members, namely, that the inclusion of the DERA North site was the only way that the defendant could have a five year housing land supply was a material misdirection. Properly advised, the members would have been told that there was a significant housing shortfall based on full objectively assessed housing need to which the application site could make a contribution but so could others. In housing terms alone other sites could be preferable as they would cause no harm to the greenbelt. The application site would not, in itself, make the difference as to whether the defendant was able to have a five year supply of housing land.
120. However, it is highly material that in the officer report, in section 29.11 dealing with very special circumstances, the housing circumstance is that the proposal would provide an achievable and deliverable phased supply of dwellings so that it was the contribution the site would make to housing need and ensuring the five year housing land supply that together contributed to making the very special circumstances that outweighed the harm to the greenbelt. In other words the housing consideration was wider than just the five year housing supply.
121. Had the full objectively assessed housing need figure of 595 dwellings been taken as the starting point the housing supply situation which the defendant had understood to be finely balanced would have been considerably more dire. Even allowing for the fluid nature of housing supply and making some allowance for the constrained nature of the district on any view there would have been a considerably greater housing need and a more significant housing shortfall than the members were advised and considered.
122. The likely scale of the housing shortfall together with the fact that the DERA North site was an achievable and deliverable housing site would remain. The officer report was clear that without a five year supply the default position should be to approve the application unless there were other material considerations that dictated otherwise (paragraph 9.6). It was also clear that there was a lack of any other significant or demonstrable harm resulting from the proposed development (paragraph 31.5). The other identified very special circumstances, namely, the unique nature of the site within Runnymede with its proximity to the railway, and the fact that the site was previously developed land would remain as before. The fact that there was a greater shortfall against the five year housing supply and, overall, a greater housing need than was thought at the time of reporting the application to committee makes it inevitable, in my judgment, that the defendant would have reached the same decision.
123. For those reasons I exercise my discretion and refuse to quash the planning permission.
124. I invite submissions on the final order and costs.