England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/03/2016

Mrs Justice Patterson:

Introduction

1. This is an application under section 288 of the Town and Country Planning Act 1990 ("TCPA") to quash a planning appeal decision taken by the first defendant, the Secretary of State for Communities and Local Government ("the defendant") by one of his planning inspectors, John Felgate BA(Hons) MA MRTPI.
2. The claimants are property developers with an interest in a site known as land at Whitford Road, Bromsgrove, Worcestershire ("the site") and were the appellants in a planning appeal against the refusal of planning permission by the second defendant, Bromsgrove District Council, the local planning authority. The appeal was decided after a four day inquiry and a number of site visits.
3. The claimants sought outline planning permission for development of up to 490 houses on the site. Planning permission was refused on highways grounds.
4. The single main issue in the appeal was the likely effect of the proposals on traffic conditions on the area of Bromsgrove.
5. It was common ground in the appeal that the junctions at either end of Whitford Road/Fox Lane were over capacity in peak hours. Originally, the proposal had been to install traffic signals at both junctions. Traffic signals proposed at the Fox Lane/Rock Hill junction were reviewed and an alternative mitigation strategy was developed by the claimants: that was to reduce pressure on the Fox Lane junction by discouraging drivers from using Whitford Road/Fox Lane by diverting Whitford Road through the appeal site and to introduce measures to increase journey distance and time for through traffic. The objective was to cause drivers to divert to the route through Bromsgrove town centre with the effect that traffic flows on that route would increase. The claimant's strategy was thus to force enough drivers away from the Fox Lane junction and through the town centre to create space at the junction to accommodate additional traffic movements arising from the 490 dwellings proposed.
6. The main focus of the evidence at the inquiry was whether the mitigation package proposed by the claimants would result in a satisfactory outcome in highways terms.
7. The inspector concluded that the proposals would cause severe adverse residual highways impact on traffic congestion, movement and highway safety, and would be contrary to policy. Those negative effects would outweigh the benefits that the scheme would bring, in terms of housing, affordable housing and economic improvements and outweigh the support that Worcestershire County Council ("WCC"), as highway authority, gave to the scheme.

Grounds of Challenge

8. The claimants challenge the decision on four grounds as follows:

i) That the inspector's findings in relation to the scheme on the Bromsgrove District Plan ("BDP"):

a) Are based on a fundamental misunderstanding about the Infrastructure Development Plan ("IDP") and its role in the Emerging BDP;

b) Failed to understand the basis for WCC's position on highways mitigation;

c) Failed to take into account the sustainability of the location compared to other locations around the town; and

d) Are procedurally unfair to the appellants.

ii) That the inspector's conclusion on the impact of the generated traffic without mitigation was vitiated by a series of basic errors.

iii) That the inspector's judgment on the effectiveness of the mitigation strategy is vitiated by a series of factual and legal errors:

a) About the deliverability of the town centre improvements;

b) About the method used to show the effectiveness of the diversion of Whitford Road including a failure to take all of the evidence into account; and

c) A legal error affecting the inspector's judgment on the deliverability of the diversion itself.

iv) That the decision was procedurally unfair in that the inspector found against the appellants without giving them the opportunity to deal with his findings of harm to safety or his findings on the harm that the mitigation strategy would allegedly cause.

Legal Principles

9. The law is not in dispute between the parties. The main guiding principles in a challenge under section 288 were summarised by Lindblom J (as he then was) in Bloor Homes v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) at [19]:

i) Decisions of the Secretary of State and his inspectors in appeals against refusals of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues are between them and what evidence and argument has been deployed on those issues. An inspector does not need to "rehearse every argument relating to each matter in every paragraph": see Seddon Properties v Secretary of State for the Environment [1981] 42 P&CR 26 at page 28.

ii) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on "the principal important controversial issues". An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not every material consideration: see South Buckinghamshire District Council & Another v Porter No. 2 [2004] 1 WLR 1953 at [36].

iii) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision maker. They are not for the court. A local planning authority determining an application for planning permission is free, "providing that it does not lapse into Wednesbury irrationality", to give material considerations whatever weight it "thinks fit or no weight at all": see Tesco Stores Limited v Secretary of State for Environment [1995] 1 WLR 759 at [780F] to [780H]. Essentially for that reason an application under section 288 of the TCPA does not afford an opportunity for review of the planning merits of an inspector's decision: see R (Newsmith) v Secretary of State for the Environment [2001] EWHC 74 (Admin) [6] to [9].

iv) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policies is for the decision maker. But statements of policy are to be interpreted objectively by the court in accordance with language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration: see Tesco Stores v Dundee City Council [2012] PTSR 983 [17] to [22].

v) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question: see South Somerset District Council v Secretary of State for the Environment [1993] 66 P&CR 80 at [83E] to [83H].

vi) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored: see Lang J in Sea & Land Power and Energy Limited v Secretary of State for Communities and Local Government [2012] EWHC 1419 (Admin) at [58].

vii) Consistency in decision making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question if it arises: see R (Fox Strategic Land & Property Limited) v Secretary of State for Communities and Local Government [2013] 1 P&CR 6 at [12] to [14].

10. Additionally, an inspector is entitled to use his experience, his professional judgment and his common sense to make subjective judgments about technical matters: see Westminster Renslade Limited v Secretary of State for the Environment [1984] 48 P&CR 255 at [261] to [263].
11. The conduct of an appeal by the Secretary of State and his inspectors should be fair. In adversarial proceedings a participant is entitled (a) to know the case which it has to meet, and (b) to have a reasonable opportunity to adduce evidence and make submissions in relation to the opposing case: see Hopkins Developments Limited v Secretary of State for Community and Local Government [2014] EWCA Civ 470 at [47] and [62]. The test is whether there has been procedural unfairness which materially prejudiced the claimants: see Hopkins at [49] and [62]. That requires the claimants to show both that they did not have a reasonable opportunity to make their case and that they have suffered material prejudice. A reasonable opportunity to "make a case" entails knowing the main points relied upon by those objecting or knowledge of the "issues" and "an opportunity to adduce evidence and make submissions on those issues". An inspector will consider significant issues raised by third parties, even if they are not in dispute between the main parties, and an appellant should, therefore, deal with such issues unless the inspector says expressly that he does not need to do so: see Hopkins at [62]. In assessing fairness a court "will be acutely sensitive to context and to the particular factual situation": see Hopkins at [47] and Engbers v Secretary of State for Communities and Local Government [2015] EWHC 3541 (Admin).
12. An adverse inference that a decision maker misunderstood something or failed to have regard to it will not readily be drawn and should only be drawn where all other known facts and circumstances point overwhelmingly to a different conclusion: see Porter No. 2 at [34] and [35]. Unless a consideration is itself a main issue there are no grounds for inferring that it was overlooked because it was not mentioned in the decision: see MJT Securities Limited v Secretary of State for the Environment [1998] 75 P&CR 188 at [198].
13. In order for an error of fact to amount to an error of law sufficient to lead to the quashing of a decision four conditions need to be satisfied:

i) There must have been a mistake as to an existing fact;

ii) The fact or evidence must have been established in the sense that it was uncontentious and objectively verifiable;

iii) The claimants must not have been responsible for the mistake;

iv) The mistake must have played a material part in the reasoning: see E v Secretary of State for the Home Department [2004] QB 1044 at [1071(66)].

Overview of the Decision Letter

14. Because of the technical nature of the argument at the appeal and the grounds of challenge raised it is simplest to provide an overview of the decision letter ("DL") here and deal with the details of the DL during each of the relevant grounds. When I do so I will refer to, for example, DL4 which means paragraph 4 of the DL and so on.
15. The DL found that, without adequate mitigation, the proposals would give rise to a "severe" impact for the purposes of paragraph 32 of the National Planning Policy Framework ("NPPF") [49].
16. The inspector found that the mitigation strategy as proposed was "unconvincing" [63].
17. Without Fox Lane either being signalised at its junction with Rock Hill or having a mini roundabout installed there would be a severe impact on that junction [71].
18. The mitigation funded for the Millfields area would be inadequate and lead to severe traffic and highway safety impacts [77].
19. The proposed mitigation strategy would conflict with the IDP which underpinned the Emerging Draft BDP and prejudice the delivery of developments which are likely to be needed to fulfil the aims of the Plan [85].
20. The effects of the mitigation scheme proposed would be mainly negative [96].
21. The prohibition order required to affect the diversion of Whitford Road could not be guaranteed and, therefore, it had not been demonstrated that the impacts will be mitigated [103].
22. There is no certainty that the effects on the town centre would be adequately mitigated [115].
23. There was an overall conclusion that the benefits of the scheme would be significantly and demonstrably outweighed by the adverse impacts [142] to [146].

Ground One: The Effect of the Scheme on the BDP

(i) Were the Inspector's Findings Based on a Fundamental Misunderstanding of the IDP and its Role in the Emerging BDP?

24. The claimants submit that the inspector dismissed the appeal partly because he found:

i) That the appeal proposals would conflict with the Transport Strategy of the Emerging BDP and would potentially prejudice the delivery of developments which are likely to be needed to fulfil the aims of the Plan [85];

ii) That the appeal proposals "would not accord with the infrastructure proposals that form the basis of the BDP Strategy i.e. the IDP and that there had been no assessment of the effects on the delivery of the BDP's other strategic sites" [129]; and

iii) That WCC's support for the diversion approach embodied in the appeal proposals could only "supplant the IDP" if, at the very least, it had been submitted for consideration as part of the BDP process and also subject to some form of public consultation [83].

25. The claimants submit that the inspector misdirected himself on the relationship between the appeal proposals and the IDP. Not only were the proposals in keeping with the relevant part of the IDP as presented to the examination into the BDP but the inspector made errors:

i) He was wrong to regard the IDP as if it were an adopted document. It is a "living document" and provides a snap shot as at February 2014: its contents are not fixed as adopted policy;

ii) On the appeal proposals for the Fox Lane/Rock Hill junction the IDP records that mitigation proposals are being taken forward in the context of the planning application;

iii) In February 2014 (when the IDP was last published) there was a potential scheme to signalise the junction at Fox Lane and Rock Hill as suggested mitigation. However, the inspector was told that WCC reviewed its IDP position upon analysing the detailed information presented in the instant application in March 2014 as is evident in their consultation response;

iv) When the appeal proposals came before the defendant's planning committee the officers did not suggest that there was any conflict between the proposed mitigation, the IDP, or any Emerging Plan;

v) The defendant did not refuse permission on the basis of any alleged conflict with the IDP or the Emerging Local Plan. The Local Plan continues to be the subject of examination in public. That began in June 2014. It has sat intermittently since then and is due to reopen on 23 March 2016;

vi) The second defendant's closing submissions contained an argument which was not in the reasons for refusal, namely, that the proposals were contrary to the IDP which appears to have misled the inspector. Those points were contradictory to the evidence and in themselves flawed.

26. The inspector, therefore, reached a conclusion on the IDP and its relationship with the appeal proposals which failed to take account of the evidence. It was a fundamental error to find that the proposals were contrary to any form of set policy or to the evidence base of the BDP. That error deprived the claimants of one of the most important points in the appeal proposals namely that WCC, guardian of the IDP, supported the appeal on the basis of mitigation proposals that it had recommended.
27. Secondly, the inspector failed to take into account that the policy intention on the part of WCC was to increase the highway capacity on Rock Hill which was why they supported the diversion of Whitford Road. There is no recognition in the DL of the highways approach of the statutory highways authority.
28. Third, was the issue of materiality and fairness: the inspector considered that the proposals were contrary to the Emerging Local Plan. That was not part of the local authority's case nor the subject of their evidence before the inquiry. The argument was not put to the appellants, highways or planning witnesses.
29. In the closing submissions on behalf of the local authority it was submitted that it was not clear whether the diversion of Whitford Road was a County Council strategy. The local planning authority was not saying that the appeal proposal would undermine the Emerging Local Plan. The claimants had produced a technical note in May 2015 on whether the diversion proposed would work. The note was the subject of some criticism but, at no stage did the local authority or the third party action group, WVV, contend that there was conflict with the Emerging Local Plan.
30. That there was a conflict occupied an important part of the inspector's reasoning in his DL. That raises doubts about fairness as no opportunity was given to the claimants to respond in evidence. Such a point is clearly not peripheral due to the fact that there is a plan led system.
31. The defendant contends that the Emerging Local Plan made it clear that in relation to the Bromsgrove strategic site allocations which were identified under BDP5A as Norton Farm, Perryfields Road and Whitford Road (the appeal site) it was essential that, in relation to green infrastructure and transport strategies, those matters were addressed in a holistic manner.
32. Emerging policy BDP5A.7 said as follows at (e):

"It will be necessary to manage the cumulative traffic impact generated by the new developments following the implementation of measures which maximise the use of walk, cycle and passenger transport modes. All proposals must be subject to appropriate appraisal in consultation with Worcestershire County Council and consistent with LTP3 policies and design standards. Full consideration must be made of the impact on the wider transport network, including that managed by the Highways Agency."

33. The modelling that was undertaken did not include the new diversion of Whitford Road. That was not part of the examination of BDP. Although there was overlapping consultation between that and the planning application the diversion was not taken into the examination of the BDP.
34. In the IDP, which was noted to be a key part of BDP's evidence base and one that had involved consultation with amongst others, WCC appendix B identified individual items of infrastructure that were to underpin the implementation of the BDP. In that, for the Whitford Road, BROM 3 site, the IDP recorded that the B4091 (Rock Hill)/Fox Lane junction was being investigated by the Whitford Road development site allocated within the Plan. It continued:

"Replace existing junction with signalised junction to improve output of vehicles from Fox Lane onto B4091 (Rock Hill). TRO required to prevent parking adjacent to the southbound carriageway. Junction to be operated using MOVA control."

The IDP did not suggest that the junction treatment was subject to further investigation with the planning application or that the signalised junction had been replaced. The IDP is dated February 2014.

35. The diversion of Whitford Road proposed was consulted on in July 2013 but was not taken into the revised IDP. What fed into the examination in public of the Local Plan was the signalised junction and not what was raised in the planning application.
36. The original Transport Assessment ("TA") submitted in May 2013 referred to the traffic signals at the junction and claimed that that fulfilled the requirement of the IDP.
37. As a result, it was correct to view matters as the claimants promoting a solution which was contrary to the IDP which is what the inspector did. The question of compliance with the IDP is a matter of expert planning judgment entirely for the inspector.
38. The technical note produced for WCC in September 2013 on the Whitford Road Highways Scheme concluded that the diversion may discourage through trips, or a proportion of them, which may lead to a number of displaced trips which were likely to reroute under free flowing traffic conditions to the A448/B4091 corridors through Bromsgrove town centre. It concluded:

"Further work to understand the impact of the proposed highways schemes such as the Whitford Road highway diversion model could be completed through the development and use of a traffic assignment model such as Saturn."

Because that was not done the diversion idea was not taken into the examination. Accordingly, the inspector was correct to say that the IDP was part of the evidence base but there was no evidence to show that its proposals had been replaced by the idea of the Whitford Road diversion.

39. However, the DL makes it clear that the inspector did not regard that as a final position. DL82 records that the Local Plan position did not make the appellants' mitigation proposals unacceptable. However, what was missing was a strategic overview as to the interrelationship of the appeal scheme and the other planned major developments. In particular, it was not clear what effect the appeal scheme would have on the Perryfields development. The only cumulative impact assessment with the other draft strategic allocations was carried out in the original TA in May 2013 prior to any change to incorporate the Whitford Road diversion.
40. The inspector was clearly aware of the position of WCC as highway authority (see DL84) but concluded that the evidence overall was lacking. It was because of that lack of evidence and potential prejudice to other developments that the inspector was entitled to take the view that he did.
41. The inspector, therefore, concluded that the Whitford Road diversion would have its own adverse consequences which would not be offset by any beneficial side effects. It did not accord with the infrastructure proposals which form the basis of the BDP strategy and there had been no assessment of the effects on the delivery of the BDP's other strategic sites. In any event there was uncertainty as to the diversion's deliverability due to the need for a Traffic Regulation Order ("TRO").
42. The inspector's conclusions were justified on the state of the evidence before him as was his conclusion that the proposed diversion scheme was contrary to the IDP. He showed no misunderstanding of the IDP.
43. The reason why WCC came up with the idea of the diversion was not a main controversial issue in the case: that was whether the mitigations proposed would work properly or had been assessed properly.
44. On the issue of fairness the inspector had found conflict with proposals in the IDP and the BDP with a risk of prejudice to sites in the BDP. Mr Hewitt, the local authority's highways witness gave evidence that he was not aware of other works such as Saturn modelling which had been undertaken to estimate more accurately the potential of rerouting to occur as a result of the proposed Whitford Road diversion. The issue of inadequate information was clearly before the inspector. In any event, the claimants ought to have anticipated the issue because of the overarching BDP policy which allocated the three strategic sites and said that they were to be looked at holistically. At all times the claimants were aware of the main points that they had to answer.

Discussion and Conclusions

45. The decision letter has a section headed 'The Infrastructure Delivery Plan'. That recorded that the evidence base presented to the BDP examination included the IDP prepared in September 2013 and updated in February 2014. It continued at DL24:

"Of particular relevance to the present appeal, the IDP proposes that both of the Kidderminster Road and Fox Lane junctions should be converted from priority junctions to traffic signals."

46. That was a correct summary of the factual position at the time the matter was heard by the inspector.
47. The inspector considered the effects of the emerging planning strategy at DL78 to DL81:

"78. The transport strategy behind the housing and other development proposals in the draft BDP is based on the Bromsgrove IDP. The IDP is intended as an overview of the infrastructure required to support the draft plan, and identifies specific items of infrastructure needed in relation to specific sites. The preamble also makes it clear that the IDP proposals have had regard to the County-wide Infrastructure Strategy of WCC.

79. In the case of the Fox Lane junction, the IDP envisages a signalised solution, which is said to be needed particularly to facilitate movements for vehicles exiting from Fox Lane itself. This work is identified as a requirement for the development of the present appeal site. The need for improvements at the Kidderminster Road junction is also identified. The diversion of Whitford Road through the appeal site is not identified as a requirement, nor is it referred to in any way at all. Nothing in the IDP suggests any intention to change the road's function or to discourage its use by through traffic.

80. The IDP forms part of the evidence base supporting the draft BDP as its examination. As such, it was available for public comment and objection for a considerable time. Although the examination is continuing, the appeal site and the other major housing proposals have been dealt with. In so far as transport issues are concerned, these proposed housing developments have been considered on the basis of the strategy represented by the IDP. No further sessions are planned on any of these topics. The opportunity to comment on these matters has, therefore, now passed.

81. The appeal proposal is consistent with the BDP in land use terms, in that it proposes development of one of the allocated TES sites, for the uses stated in Policy BDP5A.6. But the proposed mitigation strategy, based on the diversion of Whitford Road, and the lack of provision for signalisation at Fox Lane, both designed to change the role of the Whitford Road-Fox Lane route, do not sit comfortably with the IDP. Indeed these measures seem to me to be, in effect, an attempt to promote a different strategy from that on which the BDP is based."

48. There was no record of the traffic signals having been superseded at the time the appeal inspector was hearing the appeal. There had been the opportunity and time to alter the IDP during the period between July 2013 and February 2014 when it was published. Instead, there was no change. In the light of that the inspector was entitled to conclude that the proposals were contrary to the IDP. The question of compliance with its policies was a matter of planning judgment entirely for him.
49. The diversion of Whitford Road was considered in the planning application as a way of freeing up space at the Whitford Road and Fox Lane junction. That was known about and discussed during the course of the appeal. But one part of the evidence before the inspector was that the information on the diversion was incomplete. That was the position taken at the time of the technical note. As a result the diversion of Whitford Road was not taken into the IDP. It was no part of the appeal inspector's role to rewrite the Development Plan even in its emergent form: his task was to appraise the proposals against the extant Development Plan and other documents giving the latter what weight he thought appropriate. The inspector was, therefore, right to conclude that what was proposed was contrary to the IDP and Emerging Local Plan.
50. He was well aware of the position and stance of WCC as highway authority. In dealing with the mitigation proposed he said at DL82 to DL85:

"82. This in itself does not make the appellants' mitigation proposals unacceptable. Local plans are expected to be flexible, and sometimes new ideas emerge which may be judge an improvement. But here, what is missing is any strategic overview as to how the present appeal scheme and its proposed mitigation might affect the other planned major developments, and thus the overall delivery of the BDP's proposals. In particular, it is not clear what effect the appeal scheme would have on the Perryfields development, which is nearby and would potentially make use of much of the same road network. An assessment of the cumulative impact of the appeal scheme together with other draft allocations was included in the original TA, in May 2013, but this was prior to the change to incorporate the Whitford Road diversion. No similar assessment has been carried out since. Neither does it appear that any joint working or holistic thinking has occurred, as envisaged in the BDP text identified earlier.

83. The appellants contend that their proposals conform with what they refer to as the County Council's new strategy and, not unreasonably, they point to WCC's support for this aspect of the appeal proposals in numerous written comments on the application, and in the joint statement prepared for the inquiry. But there is no evidence that any such new strategy exists, other than as an idea. That does not necessarily make it a bad idea, but in order for it to supplant the IDP, it would need at the very least to be submitted for consideration as part of the BDP process, and also be subjected to some form of public consultation. Evidently, these steps have not been taken. The idea remains no more than that. There may or may not be something in it, but it has not been tested, and this inquiry is not the place to do so, because the potential effects go well beyond this appeal proposal.

84. Again, WCC's view on these matters carries weight by virtue of their statutory role as Highway Authority. But I must consider the appeal in the light of the evidence before me, and in this respect the evidence in support of the appellants' mitigation strategy is again lacking.

85. I conclude that the proposed mitigation strategy for the appeal proposals would conflict with the transport strategy for the emerging draft BDP, and would thus potentially prejudice the delivery of developments which are likely to be needed to fulfil the aims of that plan. In this respect, the proposed development again conflicts with draft Policy BDP5A.7(e)."

51. The content of these paragraphs illustrates that the inspector did not regard either the IDP or the Emerging Local Plan as fixed. His concern was that there was a missing strategic overview. The cumulative impact assessment which was contained in the original TA had not been updated since the concept of the Whitford Road diversion.
52. Likewise, he was aware of WCC's support for the appeal proposals as evidenced in their comments and in the joint statement before the inquiry. His point was that the diversion and associated matters had not been the subject of testing as part of the BDP process which it needed to be to supplant the IDP. That was the basis for his conclusion in DL84. He was well aware that the traffic light scheme had been abandoned (see DL65) but he was not satisfied that there was a sufficient evidence base to regard the mitigation proposals as acceptable.
53. As for omitting WCC's reasons for supporting the diversion, I agree with the defendant, that the reasons for WCC so doing were not a main controversial issue. The main issue before the inspector was whether the scheme of mitigation worked alone and in conjunction with the other strategic developments and whether it had been the subject of appropriate testing. He was under no obligation to deal with the reason for why WCC had changed its mind.
54. On fairness the inspector had found conflict with the proposals in the IDP and in the BDP and that there was a risk of prejudice to sites within the BDP.
55. Mr Hibbert, the local authority's highways witness, made it clear that there were wider implications to the scheme that the inspector had to consider. In the closing submissions on the part of the local authority it was submitted that the emergence of the Whitford Road diversion proposal undermined any suggestion of a holistic master planned approach for the benefit of all the western allocations and/or urban extensions. Its case in closing was that the mitigation strategy had not been adequately tested; that referred to traffic in Bromsgrove town centre, traffic from the Perryfields development and other development. The addition of capacity to the Whitford Road corridor was to force traffic into the town centre which was submitted to be a major strategic change and worthy of heavy duty modelling. In addition, there was no highways witness from WCC. The issue was, therefore, firmly before the inspector. His conclusions set out above in DL85 picked up and echoed the submissions of the local planning authority.
56. The adequacy of the mitigation measures and their testing was, in my judgment, clearly a main controversial issue which the claimants ought to have anticipated. The requirement for a holistic appraisal was clearly flagged up in the relevant part of the Emerging Local Plan. The claimants, therefore, had ample opportunity to anticipate and respond, if they thought appropriate to do so, on that issue. As it was very much a main part of the local authority's case it cannot be said that there was any procedural unfairness so far as the claimants were concerned.
57. This ground fails.

Ground Two: The Base Traffic Impact without Mitigation

58. The inspector concluded in DL49 as follows:

"From all of the above, I draw the initial conclusion that, unless the scheme would deliver mitigation which can be shown to be both adequate and effective, the proposed development would have significant adverse consequences, in terms of traffic congestion, ease of movement and safety. Together, these effects would in my view amount to a severe cumulative impact on the local transport network."

59. The claimants submit that there are three errors in that conclusion. First, that the inspector understood the claimants to accept that the unmitigated effect of the scheme was severe. That was not the case as was made clear in the claimants' closing submissions. The inspector relied also on what was in the claimants' original TA. However, that was based on two mistakes: (i) that the mitigation scheme in the May 2013 TA had been reviewed; and (ii) highways impacts which require mitigation are not by definition severe within paragraph 32 of the NPPF.
60. Second, the inspector recorded and relied upon results from the Picady computer program which are entirely unreliable as to queue lengths after capacity at the junction has been reached.
61. Third, the inspector was wrong about the lack of later empirical evidence which suggested that the queuing at the Fox Lane/Rock Hill junction varied on a daily basis that was an error on a material point which meant that his finding that the impact of the unmitigated development was severe was in error.
62. The defendant submits that at peak times it is agreed that the Fox Lane junction is under strain and over capacity. The inspector's conclusions on the situation without mitigation are, therefore, unsurprising. In addition the inspector had site visits and saw the traffic at peak hours.
63. The local authority's submission was that whether the impact was severe at the junction was a matter for his judgment. The issue for the inquiry was not that, but whether the mitigation proposed was sufficient to ameliorate the impact of the development. It was common ground that the junction at Fox Hill was operating over capacity.
64. The inspector did refer to the original TA in DL41 and DL42. He gave two reasons for doing so. First, that the analysis for Fox Lane was not repeated in the TA of September 2013 and, second, the figures had not been superseded by any later evidence. The information was relied upon by the local authority in closing. It was solely for the inspector to decide whether to accept the evidence and what use to make of it.
65. His conclusion in DL49, which was that unless the scheme would deliver mitigation which could be shown to be adequate and effective the development would have significant adverse consequences, was based upon all the evidence in the preceding paragraphs from DL38. They contained a variety of adverse impacts. His finding, therefore, was based not just on the fact that the claimants accepted there needed to be some mitigation.
66. The inspector clearly had the Picady point in mind as is evident in DL42. The claimants did not withdraw the evidence on Picady so that the inspector was entitled to take into account all of the evidence in the round as he did in DL45. His conclusion though was not based just upon the Picady results.
67. The traffic queues as evidenced in surveys produced by the claimants were not disputed by the local planning authority. That meant that the daily variability in queue lengths was not a main issue in dispute. The inspector took them into account.
68. It is clear from DL42 that the inspector did take into account subsequent evidence but the vast majority of that was concerned with the effects of the mitigation. The TAs were the evidence base for the 2020 baseline situation and the without mitigation situation.

Discussion and Conclusions

69. The DL from DL39 to DL49 sets out the inspector's reasoning on the effect of the development without mitigation. It should be borne in mind also that the inspector had conducted site visits and observed the traffic conditions at peak hours.
70. The inspector set out the evidence on the without mitigation scenario in DL39. That reads:

"The evidence for the without-mitigation scenario is found in the appellants' two TAs, dated May 2013 and September 2013. The first TA found significant problems with peak-hour capacity at the Kidderminster Road and Fox Lane junctions. Both of these junctions were found to be already overloaded, and the effect of the proposed development, without some form of mitigation, would be to make them significantly worse."

71. He then considered the year 2020 baseline situation. DL41 and DL42 read:

"41. At Fox Lane, in the year 2020 baseline scenario (Table 8.12 of the May 2013 TA), the southbound queue length in the morning peak hour is predicted to be 39 vehicles. With the development added (Table 8.13), this would increase to 68, with queuing times of up to around 5 minutes. In the afternoon peak, the same queue would increase from 62 to 91 vehicles, waiting for nearly 8 minutes. The right-turning traffic from Rock Hill would also increase in the afternoons, from 18 to 34 vehicles. This analysis for Fox Lane is not repeated in the revised TA in September 2013, but the figures in the original version remain before the inquiry, and have not been superseded by any later evidence. The development's effects at Fox Lane would be slightly less dramatic than at Kidderminster Road, but would still be substantial.

42. The appellants argue that these results overstate the effects, due to limitations in the 'Picady' modelling software and also in the BDTM, and in this regard I accept that traffic modelling is not an exact science. However, the TAs are the appellants' own documents. And although a substantial amount of other evidence has been produced since, the vast majority of this is concerned with the effects of the proposed mitigation. Nothing has taken the place of the TAs in assessing the 2020 baseline or the without-migration scenario. I therefore cannot disregard the evidence in the TAs on these matters."

72. It is clear that, in addition to taking the TAs into account, the inspector also took note of evidence produced after their submission. The problem with which he was faced was that nothing in the evidence before him apart from the TAs assessed the 2020 baseline or the without mitigation scenario. In those circumstances it was entirely reasonable for the inspector to take those TAs into account.
73. Putting the TAs with the surveys conducted by Mr Hibbert, for the Council, and Mr Bales, for WVV, the inspector concluded that the two key junctions would become overloaded and that the overloading would be significantly exacerbated by the development. He continued at DL45:

"On any basis therefore, the available evidence suggests that, in the absence of mitigation, the proposed development would cause a substantial level of delay and inconvenience to peak hour movements through the Fox Lane and Kidderminster Road junctions. In general terms, I agree that delays to traffic do not necessarily amount to a severe impact; but that does not mean that they can never do so. In this case the evidence shows that travellers on the Whitford Road route already face substantial congestion. The additional queuing caused by the development would be over and above this, and would add to it significantly. It is clear from the submissions of local residents that such a lengthening of journeys via this route would be perceived by many as an adverse impact on their quality of life. To my mind, this is not a matter to dismiss lightly."

74. He concluded on this section in DL49:

"From all of the above, I draw the initial conclusion that, unless the scheme would deliver mitigation which can be shown to be both adequate and effective, the proposed development would have significant adverse consequences, in terms of traffic congestion, ease of movement and safety. Together, these effects would in my view amount to a severe cumulative impact on the local transport network."

75. It is clear that the inspector's conclusions were based not just on the TAs submitted by the claimants but on the evidence overall. He took into account evidence from local residents as well as from the expert highways witnesses.
76. On Picady, DL42 clearly recorded the claimants' submissions about its limitations. The computer results were not withdrawn so the inspector was entitled to take them into account. The weight that he attached to them was a matter for him.
77. The daily variability of queues at the Fox Lane junction was not disputed by the local planning authority. But the surveys themselves were not a main issue. They contributed towards the inspector's overall conclusion.
78. On analysis there is nothing in this ground, which fails.

Ground Three: Whether the Inspector's Finding that the Proposed Mitigation was Unconvincing was Vitiated by Errors?

79. The claimants submit that the inspector made errors about the effect of the mitigation on the town centre. He found that the section 106 contribution towards works at the junction of Hanover Street/St John's Street in Kidderminster Road was not guaranteed to bring about improvement. He concluded that the contribution of £296,000 towards the town centre allowed WCC to spend the sum on two other junctions which had little relevance: DL113. Instead, he concluded irrationally, and contrary to regulation 122 of the Community Infrastructure Levy ("CIL") Regulations, that the reference to the other junctions meant that the section 106 undertaking fell short of what was required.
80. His conclusion on the deliverability of the Hanover Street improvement was founded on a finding that the money would provide at most about one quarter of the overall cost. That left a question mark over how and when the remainder of the cost would be found. Although the balance was expected to come from the Perryfields development that was uncertain as was the delivery of the Hanover Street junction improvement which was needed to enable the appeal scheme's proposed mitigation strategy to work.
81. The claimants submit that the inspector's conclusion that there was some uncertainty given that the Perryfields site was the subject of evidence at the inquiry that a planning application was imminent meant that the inspector's conclusion was irrational. WCC had done a cumulative assessment.
82. In DL113 and DL114 the inspector referred to two other schemes within the undertaking, namely, the A38 Worcester Road/Redditch Road junction and the Stoke Road junction. He concluded that those schemes had little relevance and that it was unlikely that WCC would wish to use more than a small proportion of the proposed contributions on those schemes given that the A448/B4091 junction was likely to be the main priority. However, there was no guarantee and WCC would be within its rights to spend the entire contribution on the other two A38 junctions. The undertaking before him, therefore, left open the possibility that the development could go ahead without any part of the highway contribution finding its way to the works that would be necessary to mitigate the impact of the town centre route.
83. The claimants submit that there is no evidential support for the inspector's conclusion that the funding would not go ahead. He failed to grapple with the burden of the evidence before him.
84. The next point was the inspector's finding that the Moskowitz Formula was unusual and untested (DL54). The methodology had been used to provide a comparative analysis as to the trips on Whitford Road and the trips through the town centre. It was therefore used as a check. The inspector failed to understand that in his references in the DL, nor did he understand the way in which the Moskowitz work was validated for this area of Bromsgrove as explained by the claimants' highways witness, Mr Hutchins. His evidence was that the formula was validated against observed results which demonstrated why it was useful and appropriate to apply it. That position was confirmed in closing submissions.
85. Further, the inspector dismissed the effectiveness of the mitigation proposals in part because a road closure was needed to effect the diversion. That was not guaranteed. The claimants had submitted to the inquiry that a planning condition which limited development until the old section of Whitford Road had been closed to cars dealt appropriately with the situation. The correct test was whether there was a reasonable prospect of the condition being fulfilled. The inspector erred because he did not recognise the factual context and had no regard to the closing submissions that the likelihood of a TRO not being confirmed was incredibly low. Given that WCC were strong proponents of the scheme the likelihood was that it would be granted.
86. On the proposed condition there was a repetition of that problem as the inspector in DL101 said that its requirements cannot be guaranteed. In so doing he proposed too high a test.
87. The defendant submits that to establish irrationality the claimant faces a high hurdle.
88. In considering the undertaking the inspector tested it properly against the requirements of regulation 122 of the CIL Regulations. His concern was that it would not be able to fully mitigate the effects of the development. DL111 where the inspector records that the undertaking provides for a contribution towards off site highways improvements which, although a substantial sum (£296,000), is one that has not changed since before the time when the Whitford Road diversion was first introduced. That has to be read with DL50 which is within the section as to whether the mitigation proposals have been adequately assessed and in which the inspector says that the draft section 106 package and travel plan as envisaged at that stage (May 2013) were broadly similar to those proposed now.
89. The inspector was correct in DL112 that the contributions could only be applied to three identified schemes. The contribution offered was about one quarter of the cost required for all of them. The inspector concluded in DL114 that the submitted undertaking fell short of what was required which was a rational and reasonable conclusion on the facts. Further, it reflected the local authority closing submissions and echoed the contents of the second TA.
90. As to the uncertainty of funding, the inspector's conclusion was put in terms of a low threshold. The Perryfields planning application had yet to be seen. The local authority were submitting that the situation was unclear and unacceptably vague. In that context the inspector's conclusion was perfectly rational.
91. In their evidence the claimants had introduced the Moskowitz formula as a guide. It accepted that it was a coarse tool. It was in that context that the inspector rejected its usefulness. There is no basis for saying that he improperly discounted it; DL52 to DL57.
92. The important finding was how the inspector considered the claimants' strategy. It is clear from the decision letter that he took into account the totality of the traffic evidence. Without the iterative process of a Saturn model he was not satisfied and concluded that there was little in the May 2015 WSP diversion analysis report upon which he could rely. That was a matter for him.
93. In DL63 the inspector concluded that the claimants' case regarding the proposed mitigation was unconvincing. He referred to the September 2013 TA as lacking vigour but went on to consider subsequent evidence and concluded that that failed to make up for the failing. As a result, he had no confidence in the mitigation strategy as a whole. The subsequent evidence referred to by the inspector included validation. That related to the observed results and did not relate directly to future predictions.
94. If an error arose that was the claimants' fault as the inspector was simply echoing in DL63 what the claimants said in their closing submissions which was:

"Mr Hutchins presented an exercise using what he fairly described as a course 'diversion model', derived by work from Moskowitz. It is a simple diversion curve utilising time and distance to gauge driver propensity to reroute. It is not often used and stems from work in America in the 50s, those points are true. However, there is no evidence that it assumes the Californian freeway network – that is certainly not how the 1996 publication referred to by Mr Hutchins describes it. The actual results it throws up are a matter of a few percentage points away from the actual observed results."

95. In those circumstances the inspector was right in DL59 and DL63 in his conclusions which were rational.
96. The inspector expected that there would be some diversion which would result in a reduction of traffic at the junction. The question was how much. The problem with the claimants' case was that every element of the mitigation strategy had to work as intended. The local authority, despite concessions in cross-examination, still firmly resisted the claimants' case and did not accept the Moskowitz formula and the additional journey time predicted.
97. On the condition the inspector used the right test of reasonable prospect as is evident in DL100. The inspector's comment in DL103 about the fact that the Whitford Road diversion could not be guaranteed to be delivered was a conclusion on the practical efficacy of the scheme as opposed to the lawfulness of it.
98. The inspector showed no misunderstanding of the legal requirements for a TRO. His point was that even if a condition was put on the planning permission to be effective the mitigation strategy had to work in its entirety and there were hurdles to be overcome to ensure that was the case.
99. There was no reason to suspect that the inspector misunderstood what was proposed under the condition. It was a matter for his judgment for which he had an adequate evidential basis.

Discussion and Conclusions

100. In dealing with the mitigation by the contribution to highways improvements in the town centre the inspector said:

"111. The legal undertaking provides for a contribution of just over £296,000 towards off-site highways improvements. This is a substantial sum. However, the amount has not changed since before the time when the Whitford Road diversion was first introduced. The whole purpose of the diversion is to send more traffic through the town centre. This therefore must have the effect of increasing the development's impact on that area. No clear explanation has been given as to why the same contribution is still appropriate. The County Council does not query the amount, and I give due weight to their view, but this is not conclusive.

112. The undertaking specifies that the contribution may only be applied towards three identified schemes. One of these is the A448/B4091 (Kidderminster Road/St John Street/Hanover Street) junction. The need for improvements at this junction is identified in the IDP, with an estimated cost of £1.12m. There is no dispute that these works are important to the development of the present appeal site, because the junction causes a significant bottleneck on the town centre route that would need to be used by traffic diverted from the Whitford Road. Without this improvement, the incentive to take the town centre route would be diminished. But the present appeal proposal would only provide, at most, about a quarter of the overall cost. As a percentage share, that may seem reasonable, but it leaves a question mark over how and when the remainder of the cost would be found. It is said that the balance is expected to come from the Perryfields development, but this is yet to be seen. There is therefore some uncertainty over the delivery of this important piece of off-site highway infrastructure, which is needed to enable the appeal scheme's proposed mitigation strategy to work as planned.

113. The other two schemes specified in the undertaking are the A38 Worcester Road/Redditch Road junction, to the south of the town, and the Stoke Road junction on the A38, to the east of the town centre. Neither of these junctions are located on the route that traffic diverted from Whitford Road would be likely to use. Consequently, in terms of mitigating the proposed development's impact, these particular highway schemes have little relevance. It is said that in practice it is unlikely that WCC would wish to use more than a small proportion of the proposed contribution on these schemes, because the A448/B4091 junction is likely to be the main priority. But there is no guarantee of this. Given the terms of the obligation, WCC would be within its rights to spend the entire contribution on the two A38 junctions.

114. I appreciate that, now that the undertaking has been entered into, the appellants have little control over how WCC chooses to spend this money. But the undertaking is unilateral. The appellants therefore did have control over what went into it, and it was for them to ensure that it was drafted so as to secure the mitigation that would be needed for their proposed scheme. As it is, the undertaking leaves open the possibility that the development could go ahead without any part of the highway contribution finding its way to the works that would be necessary to mitigate the impact on the town centre route. Given the way that the appeal proposals have been designed, with the specific aim of pushing additional traffic onto that route, over and above the traffic generated by the development itself, it seems to me essential that whatever funding is provided for highway improvements should be used in a way that would help to mitigate this impact, without the possibility of being diluted into other works. In this respect the submitted undertaking falls short of what is required."

101. The inspector applied his own mind as to the adequacy of the section 106 agreement. On the face of the undertaking there was no definite contribution to the Hanover Street junction. That was important to the development of the appeal site as the junction caused a significant bottle-neck which, without alleviation, would act as a disincentive for traffic to take the town centre route. As the Perryfields development was not the subject of a planning application and that was expected to provide the majority of the funding for the junction the inspector was clearly right to say there was some uncertainty as he did in DL112 over the delivery of that junction improvement.
102. The inspector then proceeded to consider the other two schemes specified in the undertaking and concluded that WCC would be within its rights to spend the entire contribution on the two A38 junctions. His criticism was that the appellants had control over how the unilateral undertaking was worded to ensure that it was drafted to secure appropriate mitigation that was necessary for their scheme. He regarded the undertaking as too slack which, given that the core of the claimants' mitigation was to push additional traffic through the town centre, seemed to be something which required greater security. That was a reasonable judgment to come to in the overall situation. It is true that certain of his wording could have been better expressed but, read as a whole, there is no doubt as to what the inspector concluded. He had sufficient basis to make that conclusion and his findings cannot be said to be irrational.
103. That deals also with the prospect of the other two junctions being prioritised over the Hanover Street junction.
104. As to the points on the Moskowitz formula, the inspector dealt with those in DL52 to DL58:

"52. In May 2015, the appellants produced their evidence for the appeal, which includes the WSP Diversion Analysis report. That report calculates the proportion of the through traffic that would divert to the town centre route, based on the 'Moskowitz diversion curve formula'. On this basis it is suggested that the number of vehicles switching would include 43% of those with an origin or destination to the south-east of Bromsgrove, and 63% of those heading to or from the south west; these figures compare to 10% and 30% at present. But in the interests of robustness, the authors have then adjusted their assumptions downwards, to 30% and 50% respectively. Overall, this would mean about 80 existing trips being diverted away from Whitford Road and Fox Lane in the morning peak and 140 in the evening. On this basis, it is argued that the traffic generated by the new development would be balanced by the reduction in through traffic, resulting in a broadly neutral impact on the Fox Lane and Kidderminster Road junctions and the corridor as a whole.

53. The WSP report then goes on to consider the consequential effects on the town centre route, and on the Millfield area and Deansway. Based on the same forecast diversion rates, it is calculated that the increase in peak-hour traffic at two of the key town centre junctions would be 8% and 3%, and that little or no additional traffic would be generated through Millfield or Deansway.

54. The main focus of the objectors' criticisms relates to the Moskowitz formula, and in particular whether this methodology is appropriate for the task. That question is a particularly important one, because the Whitford Road diversion is effectively the foundation for the whole of the mitigation strategy as now proposed. I do not doubt that the formula has a respectable pedigree, but it was evidently developed in the 1950s, for use by the California Highways Division. It was therefore clearly designed for use in conditions rather different from those of 21^st-century Britain. Although the Council's and WVV's traffic witnesses were familiar with it in principle, neither had ever heard of it being used in a UK-based context, and there is no evidence that it has ever before now been applied in a situation similar to the present appeal. For these purposes therefore, it seems fair to say that the Moskowitz approach is unusual and untested.

55. As the appellants acknowledge, in comparison to more modern traffic modelling programmes, the Moskowitz formula is an unsophisticated and rather one-dimensional tool, designed to look at a single issue in isolation, rather than dealing with the transport network holistically. In particular, it lacks the 'iterative' ability of an assignment-type model such as 'Saturn'. This seems to me a significant weakness, because in the present case the alternative route onto which the diverted traffic would have to be channelled is not a free-flowing Californian freeway, but part of an already-saturated urban town centre. Every diverted vehicle would add to the existing congestion on this alternative route, and would thus contribute to making that option less attractive. In Saturn this effect could be built-in, but the Moskowitz formula does not enable it to be taken into account.

56. In the circumstances, my view is that the appellants' choice of methodology for such a crucial task was ill-judged. The method's lack of iterative capability, and its lack of ability to respond to the particular circumstances of the location, means that the results must be regarded with a considerable amount of caution. Given that alternative traffic modelling tools are available which would have been more suitable and more widely accepted, the use of such an unorthodox approach inevitably leaves unanswered questions. I appreciate that Saturn modelling is expensive, but that does not mean that a proper assessment is unnecessary, especially for a large development such as this. I have no doubt that if the assessment had been carried out and submitted at the time when the diversion was first proposed, there would have been time for some of these issues to be explored and resolved. The fact that it was not produced until nearly two years later, simply adds to the objectors' sense of unease, and I have some sympathy with that view.

57. Taking a pragmatic approach, it is possible that the shortcomings of the Moskowitz method may have been compensated for by the WSP report's final adjustment, bringing the diversion rates down from the raw output figures of 43% and 63%, to the more conservative 30% and 50%. But the fact that this adjustment was perceived to be necessary seems to me an acknowledgement that the method itself is flawed. And the unscientific and arbitrary nature of the figures that have been inserted at that stage further undermines any conclusions that might be drawn from them. As the objectors rightly point out, introducing an unsupported assumption in this way begs the question as to what value can be attached to the study that preceded it.

58. Unfortunately, these misgivings about the assessment in the Diversion Analysis report do not stop at the effects on the Whitford Road corridor. The report's conclusions relating to the town centre, Millfield and Deansway are all consequent to, and thus to some degree contingent upon, its earlier findings. My doubts as to the adequacy of the way the diversion effect has been assessed must therefore condition the way that these subsequent conclusions are viewed. In the case of Millfield and Deansway, the report's treatment of these areas is fairly superficial, and it may well be that the same assertions could have been made by the appellants in any event. But the fact is that they were not, and the appellants chose to address these issues only after conducting their Moskowitz calculations. I am left with the unavoidable feeling that there is little in the May 2015 report on which I can rely."

105. It is clear from those paragraphs that the inspector was unconvinced by the use of the Moskowitz formula. He concluded that it lacked the iterative ability of an assignment type model such as Saturn which he regarded as a significant weakness as the alternative route would be part of an already saturated urban network. Although every diverted vehicle would add to the existing congestion on the alternative route the effect of that under Moskowitz did not enable it to be taken into account. That was unlike the situation if the Saturn model had been used. It was a matter for his judgment as to how appropriate the use of the Moskowitz formula was in the circumstances. He set out his reasons for regarding the use of Moskowitz as ill-judged in DL56. He was sceptical as to whether a proper modelling assessment had been undertaken. The fact that it was not brought to public attention until May 2015 left him with misgivings.
106. Despite that he considered whether the adjustments made in the WSP report may have compensated for the shortcomings of the Moskowitz method. He, therefore, took into account the validation exercise that had been used. The difficulty that the inspector was faced with was that the May 2015 report's conclusions were following from, and to some extent dependant upon, its earlier findings involving the use of the Moskowitz methods.
107. I am not convinced that any error arose in the mind of the inspector as revealed in the decision letter. There is nothing there to indicate that the validation exercise was left out of account. That related to the observed results and did not relate directly to future predictions. Further, if an error arose the inspector was, in his description of the Moskowitz formula, echoing what the claimants were saying. In those circumstances if there was any error it arose from what the claimants were saying to the inquiry.
108. What is clear from DL59 and DL63 is that the inspector took into account all of the highways evidence in the inquiry before coming to his eventual conclusion. The problem the claimants faced was that the diversion of Whitford Road was not quantified in a way which was evidentially acceptable. That was a matter entirely for the inspector's judgment.
109. As to the planning condition it is quite clear from DL100 that the inspector applied the correct test. DL100 reads:

"Allied to this, there would need to be a planning condition. Such a condition would need to be drafted so as to allow the development to start before any Traffic Order was in place, because it is likely that without the new road being actually available, the Order could not be granted. But the condition would also need to prevent the development from proceeding beyond a given threshold until the closure of the old route had actually taken place. That requirement would be outside the developer's control, and thus the condition would only be lawful where there was a reasonable prospect of being fulfilled. I have some doubts as to how the Courts would judge the lawfulness of such a condition here."

110. The inspector then went on to consider the TRO in DL101. He made the obvious point that imposing a condition could not guarantee that an order would be granted.
111. The inspector accepted that, in time, the outstanding matters might be resolved but he had to make a determination on the evidence before him. In reaching his conclusion in DL103 I share the view expressed by the defendant that the inspector was there dealing with the practical effect of the diversion as opposed to the lawfulness of it. It is his concluding paragraph in the section as to whether the Whitford Road diversion could be delivered. He had taken into account that it was reasonable to suppose that WCC, given their position at the appeal, had wished to support an order that they would have to promote as highway authority. However, it had to follow statutory procedures for public and other consultations. As objectors had the right to have their view considered fully and fairly the authority's decision could not be prejudged.
112. But that alone was not the end. The planning condition would only be lawful if there was a reasonable prospect of it being fulfilled. Even if that was satisfied that could not guarantee that a TRO would be granted. It may well be said that that puts the test too high but, if the TRO failed, the inspector concluded that it was difficult to see how the condition would then be enforceable.
113. The condition was proposed with the following wording:

"Prior to the occupation of the 200^th dwelling, the existing alignment of Whitford Road, will be severed and an alternative vehicle (route) provided and made available for public passage in accordance with details which have been submitted to and approved in writing by the local planning authority."

The reason for that condition is to ensure the safe and free flow of traffic onto the highway.

114. That would permit some significant residential occupation on the Whitford Road site prior to the provision of the alternative alignment of Whitford Road. The inspector had a reasonable basis to be concerned as to what would be the outcome should the TRO not succeed.
115. At the end the inspector was not convinced that the traffic impacts of the proposed development could be effectively mitigated. Reading the DL as a whole and in a fair way that is evident. The conclusion in DL103 was that the fact that Whitford Road diversion could not be guaranteed to be delivered reinforced the inspector's view that it had not been demonstrated that the proposed development's severe traffic impacts would be effectively mitigated. It follows, therefore, that even if there was an error rather than infelicitous expression in part of that section of the DL the inspector's fundamental conclusion that the traffic impact could not be effectively mitigated remained. Accordingly, this ground fails.

Ground Four: Other Fairness Issues

116. The claimants contend that they had no opportunity to respond to the issue of road safety. In DL46 the inspector concluded that additional queuing and delays had an obvious link to increased levels of driver stress and frustration which would be particularly pertinent at the Fox Lane junction. The fact that the junction did not have a bad safety record did not mean that it was free from danger. The inspector returned to the issue in DL142 when he concluded that the appeal scheme in its mitigation proposals did not strike an acceptable balance between the need for housing and the need to provide adequate transport infrastructure including reasonable standards of safety and ease of movement for existing residents. At no time were those matters raised during the inquiry so as to give the claimants' witness an opportunity to respond.
117. Second, the inspector set out a lengthy set of conclusions as to the secondary impacts of the development proposals at DL86 to DL92. There had been no suggestion at the inquiry of the cumulative cost to society due to an extra two minutes travelling. Further, the inspector took into account the effect on local residents which had been part of the original reason for refusal which had been dropped. It was not raised by the local planning authority or third parties that there was a traffic detriment at all times of day and not just the peak hours.
118. The defendant submits that there are five reasons why there was no unfairness. The issue of highway safety was obviously relevant where highways issues were in play. The claimants ought to have anticipated that fact. Second, planning policy made highway safety relevant. DL15 records that policy S7 of the Bromsgrove Local Plan set out general requirements for residential development including that developments should not have unacceptable traffic implications or perpetuate a traffic hazard. DL27 summarised paragraph 32 of the NPPF which meant that safety was raised. Third, it was raised as a main issue by the inspector. Fourth, the issue was identified as of concern to the rule 6 parties. Fifth, it was addressed by the claimants.

Discussion and Conclusions

119. DL46 reads:

"In addition, it seems to me that in this situation it would also be wrong to ignore the potential relationship between congestion and safety. An increase in vehicles does not necessarily mean an increase in accidents. But additional queuing and delays have an obvious link to increased levels of driver stress and frustration. To my mind this is particularly pertinent to the case of the Fox Lane junction, given that this junction is proposed to remain uncontrolled. Although the junction does not have a bad safety record, that does not mean that it is free from danger. With the significant increase in queue length and waiting times at this point, it seems to me that the risk of accidents in the future would be likely to increase."

120. The claimants submit that the link between increased levels of drivers stress, frustration and accidents was never raised by the inspector. He recognised that there was not a bad safety record at the Fox Lane junction but was concerned that the risk of accidents would be likely to increase in the future. As the defendant submitted there is no issue with the inspector reaching that conclusion: see Westminster Renslade (supra). The inspector had reached a common sense conclusion as to the effect of queuing and delays upon driver mindset. The case for the local authority reflected in paragraph 12 of their closing submissions referred to the Whitford Road diversion as potentially more dangerous. Their case was that the strategy of making the diverted route so congested that people wanted to divert was, in particular, in the peak hours when people were sometimes late and frustrated an issue of safety connected with frustration was in play as part of the local authority's case or, at the very least, could be anticipated. In those circumstances I do not think that the claimants have any legitimate cause for grievance that they were unfairly treated.
121. The DL dealt with the secondary effects of the Whitford Road diversion from DL86. The inspector dealt with the effects in DL88 to DL92:

"88. Dealing first with the adverse effects, the most obvious of these would be that, for existing and future users of the Whitford Road-Fox Lane route, journeys would become longer, slower, less fuel-efficient, more polluting and most costly. Although an extra 2 minutes travelling would not be likely to cause hardship, there would also be a cumulative cost to society. In this context I note that the diversion would to some degree affect residents of the new development itself, as well as extraneous traffic; and also that it would equally affect journeys at all times of day, even though the need for mitigation is only during peak hours. These effects on users could be lessened somewhat if the internal road were made shorter, or the obstacles more limited, but this would diminish the diversion strategy's effectiveness. As the appellants acknowledge, causing inconvenience is essential to the diversion's success. Any attempt to make it less so would therefore risk defeating its objectives.

89. Secondly, if the scheme succeeded in diverting traffic onto the town centre route, as intended, it must follow that it would add to the existing congestion in that area, and to the need for highway improvements and other mitigation measures there. The IDP contains proposals to improve some of the town centre junctions, and the S.106 undertaking provides for a contribution to those measures. But these were already proposed before the Whitford Road diversion, so would presumably be needed anyway. In that case, the present scheme would eat into any reserve capacity that might remain on the town centre route after the planned improvements.

90. Thirdly, the lengthening of journeys on Whitford Road would make it likely that some traffic would rat-run via Deansway. The journey through that area is said to take 90 seconds, and is relatively unobstructed. As such, it is shorter and potentially more inviting than that now envisaged through the appeal site. Deansway is a quiet residential street, not designed for through traffic, and any diversion of extraneous vehicles into this area would be highly undesirable. For the same reasons already discussed, this impact could not be addressed by shortening the route through the appeal site, because that would reduce the effectiveness of the whole diversionary strategy.

91. The S.106 undertaking provides a further sum of £50,000 for traffic calming in Deansway, and the appellants have put forward indicative plans showing the form that such a scheme might take. But these works would have their own adverse impacts for local residents, including loss of on-street parking and general inconvenience. They would also change the street's character, and although the appellants maintain that the amount of money provided would be sufficient, it seems unlikely that it would allow for a high quality scheme in terms of its design and materials. If it were not for the proposed diversion, there would be no need for any alterations to Deansway at all; as the Council put it, the need for such works would amount to 'mitigating against the effects of the other mitigation', rather than against those of the development itself.

92. And fourthly, there would be the diversion's effects on the proposed development itself. Through traffic that continued to use Whitford Road and Fox Lane would be routed through the new neighbourhood. If the appellants' estimates are right, this might still be around 50-70% of the existing flows. I accept that it would not be impossible to design a scheme to accommodate this external traffic, and indeed other examples may be found. But nonetheless, it would not be ideal. In my view this would make it more difficult to achieve a high quality residential environment within the site, and would be likely to result in compromises which would not otherwise need to be made."

122. It is clear that in DL88 the inspector was making the point that once the diversion was in play it would affect journeys at all times of day even though the mitigation was only needed during the peak hours. He was there referring to the diversion itself and recognising that it would impose an additional travel time but mitigation was only needed during the peak hours. The claimants submit that the cumulative cost to society as a result of that was never suggested during the public inquiry. I have considerable reservations as to whether that in itself could be regarded as a principal controversial point. As part of an overall questioning of the mitigation strategy it was a common sense conclusion that the inspector was able to draw. Further, local residents gave evidence that such a lengthening of journeys via the diverted route would be perceived by many as an adverse impact on their quality of life. The issue was clearly in play. The inspector took that forward in DL96 to conclude that the impacts of the diverted route would be such as to reduce the quality of like in Bromsgrove contrary to the NPPF aims. The matter was raised also in the proof of evidence of Mr Hibbert, on behalf of the local authority, it was something, therefore, which the claimants could reasonably expect to deal with during the course of the inquiry.
123. As to the absence of any material delay outside the peak hours in DL88 the inspector does not say what the claimants allege. The reference within that paragraph to the diversion equally affecting journeys at all times of day, in my judgment, was to the additional length of the journey to the users of the diverted Whitford Road rather than an additional two minutes applying equally to all users throughout the day. On a fair reading of that part of the decision letter that is what the inspector was referring to.
124. In those circumstances I find that there is no additional unfairness on the part of the inspector. There is nothing in this ground.
125. For the avoidance of any doubt I have taken into account all the other points raised by the claimants but none affect by decision.
126. It is often said, but here worth repeating, that decision letters should be read fairly and as a whole, and without excessively legalistic textual criticism. The parties were well aware of the issues that had been raised at the inquiry and the arguments advanced by all parties, including the third parties. An inspector is obliged only to deal with the substantial points that have been raised and the principal important controversial issues. At times this challenge has gone beyond that.
127. Accordingly this claim is dismissed.