Case No: CO/4855/01
Neutral Citation Number: [2002] EWHC 1275 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Friday 21 June 2002
Before :

THE HONOURABLE MR JUSTICE SCOTT BAKER

- - - - - - - - - - - - - - - - - - - - -
Between :

	GOLDFINCH (PROJECTS) LIMITED	Claimant	
	- and -
		
	NATIONAL ASSEMBLY FOR WALES

-and-

FLINTSHIRE COUNTY COUNCIL	First Defendant

Second Defendant
	
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

Mr Nicholas Nardecchia (instructed by Halliwell Landau) for the Claimant
Mr Rhodri Williiams (instructed by The Treasury Solicitor) for the First Defendant

- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court

Crown Copyright ©

Mr Justice Scott Baker:

1.	The Claimant applies under Section 288 of the Town and Country Planning Act 1990 (the 1990 Act) as a person aggrieved by the decision of an inspector dismissing its appeal against the Second Defendant’s refusal of planning permission. The inquiry was held on 9 and 10 October 2001 and the inspector’s decision is dated 22 October 2001.
2.	The site in question is about 1.98 hectares and is located to the west of Sealand Road and about 0.5 km south of Saughall in Flintshire. A company called Caxios Limited has occupied the site since about 1980 but has recently sold it to the Claimant. The existing and permitted use is general industrial. The site is in open countryside and has developed over some 40 years from an old railway station. Large metal pipework is manufactured in a building of some size. There is also a substantial two storey office block, other subsidiary buildings, extensive areas of hard standing, outdoor storage, grass and parking. There are large trailer units and metal containers on the site. Caxios Limited started to move out in August 2001 and once this exercise is complete the site will be empty. The Claimant wishes to redevelop the site by the erection of 23 dwellings.
3.	The unusual feature of the case is that Caxios Limited, following a successful appeal in November 1996, was given permission to do just that. Because the permission was not implemented the Claimant, the new owner of the site, has had to make a fresh application. This was refused by the Second Defendant, against the advice of its planning officer, and that refusal was upheld by the inspector. It is this second decision that has lead to the present application. The very fact that the second inspector came to the opposite conclusion to the first inspector raises a serious question mark, and when one examines why, submits Mr Nardecchia, who has appeared for the Claimant, it is clear that the second inspector made errors of law.
The basis of the second inspector’s decision
4.	The second inspector said there were two main issues, the extent to which the circumstances had changed since the previous appeal and whether the proposed development would be subject to an unacceptable risk of flooding. 
5.	On the first issue there had been a change in national guidance and local policies. He noted that the development plan, the 1991 Clwyd County Structure Plan had not changed and that the 1994 Alyn and Deeside deposit draft Local Plan had still not progressed to formal adoption and repeated the policies in the structure plan. Also, there were no policies in the development plan or any emerging plan that related to the development of industrial sites in the open countryside for another use. However, he went on to say that the situation in respect of all other national and local planning policies had changed significantly since 1996. He referred to the 1997 Flintshire edition of the Clwyd Structure Plan second alteration and Planning Guidance (Wales), revised in 1999. Then he mentioned Regional Planning Guidance for North Wales adopted in July 2001. The proposal was objectionable, he said, on the grounds it would not be well integrated with the existing pattern of settlement and was in conflict with the objectives of sustainable development. 
6.	On the second issue, flood risk, he referred to uncertainties and inconsistencies in the Environment Agency’s approach to the proposal and said it was not clear whether they had taken into account the effect of climate change on flood risk. He said he was not satisfied there was sufficient evidence to show that the residents of the proposed development would be sufficiently free of danger from the risk of flooding to warrant a grant of planning permission.
The basis of the first inspector’s decision
7.	The first inspector, when he heard the appeal in November 1996, identified the main issue as the effect of the proposal on the character and appearance of the area having regard to local planning policies and to national planning guidance. He said there was no dispute that the existing use was “an incongruous, inappropriate and non-conforming use generating heavy traffic and activity in an area of open countryside.” He concluded that the proposal would not be contrary to the relevant policies of the development plan or the emerging plans, nor would it be detrimental to the character and appearance of the area. Indeed, he thought it would bring significant benefits to the local community. Removal of a general industrial use from the site should significantly reduce noise and disturbance arising from the industrial process and the movement of heavy vehicles and industrial plant and be of benefit to the residents to the existing cottages. The proposal was not a new development on a greenfield site and would not be new development in the countryside. He referred to Planning Guidance (Wales) Planing Policy (PPW), which states that new buildings in the countryside away from existing settlements or areas allocated for development in development plans should be strictly controlled, but pointed out that what was proposed was a new use rather than a new development and that this put the application outside the normal interpretation and application of such a policy. He said that whilst the proposal was not in strict accord with the advice in paragraph 83 of PPW the benefits of the proposal outweighed the objections.
8.	There is no mention of flooding anywhere in the first inspector’s decision, although one of the conditions (No.7) required approval of drawings showing finished floor levels in relation to the 1 in 100 year flood contour outline.
The Law
Section 54A of the 1990 Act provides :
“Where, in making any determination under the planning Acts regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise.”
Section 70(2) provides:
“In dealing with……an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.”
9.	Section 79(1) provides that the Secretary of State may deal with an appeal as if the application had been made to him in the first instance.
10.	In City of Edinburgh Council v Secretary of State for Scotland [1997] 1WLR l447 Lord Clyde emphasised the importance of the development plan. He said at  P1459D:
“In the practical application of Section (54A) it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in the light of the whole plan the proposal does or does not accord with it.”
11.	In North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P+CR 137, 145 Mann L.J said that previous appeal decisions relating to the same development on the same site are material considerations and, although a second inspector may disagree with the judgment of another, before doing so he ought to have regard to the importance of consistency and give his reasons for departure from the previous decision.
12.	The central thrust of the Claimant’s case is that the second inspector failed to make any finding whether the proposed development accorded with the Clwyd County Structure Plan and if so whether there were reasons for departing from it and that he has not justified disagreeing with the judgment of the first inspector.
13.	Mr Rhodri Williams, for the First Defendant, submits the second inspector was justified in taking an entirely fresh approach because material circumstances had changed significantly since the first decision. He groups these under the following heads:
i)	The 1991 development plan had become very out of date.
ii)	The introduction of the word “exceptional” in HSG7 of the Clwyd Structure Plan second alteration as against “special” in B8 of the 1991 development plan.
iii)	The increasing emphasis on the sustainability principle and the duty of the National Assembly for Wales to make a scheme setting out how it proposes, in the exercise of its functions, to promote sustainable development under Section 121 of the Government of Wales Act 1998.
iv)	The recognition in paragraph 3.3.1 in the 2001 draft PPW that not all previously developed land is suitable for development.
v)	The precautionary principle in paragraph 3.1.7 of the 2001 draft PPW of limiting environmental damage even when scientific knowledge is not conclusive.
vi)	New national guidance in technical advice notes TAN (Wales) TAN 1 (1997) on housing land availability studies and TAN 15 (1998) on development of flood risk.
vii)	Paragraph 5.5 of Regional Planning Guidance for North Wales 2001 that most new development should be closely related to the existing settlement pattern so that it is readily accessible and minimises the need to travel long distances.
The 1991 Development Plan
14.	On the first contention that the second inspector made no finding whether the proposed development complied with the structure plan, the first inspector made such a finding but he second inspector did not. It is true that the plan was five years older but it was still the current development plan. It was not, in my judgment, open to the second inspector to dismiss it as “now very out of date.” There is a statutory presumption in Section 54A of the 1990 Act that decisions are made in accordance with the development plan unless material  considerations indicate otherwise. The second inspector should have made the finding and then gone on to see whether there were indeed any material considerations that dictated otherwise. He fell into error in not doing so. 
Exceptional/Special
15.	 In the first place, there had been no change in the statutory development plan since the first decision in 1996. Indeed the second inspector acknowledges this at paragraph 8. The only new policy in the emerging development plan was policy HSG7 in the draft structure plan second alteration. But this is not materially different from policy B8 in the statutory structure plan. Policy B8 provides:
“New dwellings in the open countryside will be permitted only in special circumstances in particular where a dwelling is essential to house a farm/forestry worker who must live on the spot rather than in a nearby settlement.”
16.	In HSG7 the word “special” has been replaced by “exceptional”. Whilst this might be said to emphasise the presumption against the creation of new dwellings in the open countryside, that presumption was already there in B8. So this hardly justifies the second inspector in taking a different view from the first inspector. As both inspectors observed, there are no policies in the development plan or in any emerging plan that relate to development of industrial sites in the open countryside for another use. There has been no relevant change in the National Guidance. Planning Guidance (Wales) (PGW) was revised in 1999. Paragraph 83 of the 1996 document provides:
“…….New housing developments should be well integrated with the existing pattern of settlements: the expansion of towns and villages should avoid creating ribbon development, coalescence of settlements or a fragmented development pattern …….Significant incremental expansion of housing in villages and small towns should be avoided where this is likely to result in unacceptable expansion of travel demand to urban centres and where the travel needs are unlikely to be well served by a public transport.”
17.	The first inspector dealt with this by saying that whilst the proposal was not in strict accord with this advice, the benefits outweighed the objections. This was, as the appellant in that case had submitted, a “windfall” site that would provide for housing that would otherwise create a demand for greenfield site development.
Sustainability
18.	The thrust of the second inspector’s decision on sustainable development is to be found at paragraph 14 of the decision letter where he said:
“The development plan approved in 1991 is now very out of date, and there has been the introduction of a revised national guidance which is undergoing further revision and which incorporates an increasing emphasis on the principles of sustainable development.”
In short he was saying that the 1991 development plan had been overtaken by other policy changes in particular the principles of sustainability.
19.	He said at paragraph 11 that greater emphasis was now being placed on the principles of sustainability. Whilst the 1996 Guidance acknowledges these principles, the 1999 revision draws attention to the statutory duty of the National Assembly for Wales to promote sustainable development. Further, the February 2001 draft Planning Policy Wales sets out a number of broad strategic sustainability objectives that should be taken into account in the control of development throughout Wales.
20.	Mr Nardecchia submits that the February 2001 document contains no material change in policy and, even if it does, unadopted draft policy is not a material consideration in the circumstances of this case. The 2001 draft PPW was ultimately adopted in February 2002 but it was unadopted at the time of the appeal.
Mr Williams relies on it in particular for two paragraphs:
3.3.1.	That not all previously developed land is suitable for development and that the redevelopment of some previously developed land may not be sustainable.
3.1.7.    That the Assembly will be prepared to take precautionary action and on, the basis of the ‘precautionary principle’, to limit environmental damage even where scientific knowledge is not conclusive.
The second of these points relates to risk of flooding to which I shall come later in this judgment.
21.	Sustainable development is defined as development that meets the needs of the present without compromising the ability of future generations to meet its needs. Planning Policy Wales in 1996 said that sustainable development means reconciling two basic aspirations of society:
•	To achieve economic development to secure rising standards of living both now and for future generations;
•	To protect and enhance the environment now and for the future.
A key role of the planning system is to provide homes, investment and jobs in a way which is consistent with the principle of sustainable development.
22.	The 1999 PG(W) changed this to say that the Government’s vision of sustainable development is based on four broad objectives:
•	Maintenance of high and stable levels of environmental growth and employment; 
•	Social progress which recognises the needs of everyone;
•	Effective protection of the environment;
•	Prudent use of natural resources.
23.	While I would not go so far as to say that the inspector should have left out of account altogether potentially relevant provisions in the draft PPW he gives them much greater weight than was justified to the circumstances of this case. There was in my judgment no fundamental difference in the principle to be applied to this planning application between 1996 and 2001. Sustainability was already a well familiar concept in 1996, it does not provide a basis for departing in 1991 from the earlier decision.  
Suitability of Previously Developed Land
24.	Of course not all previously developed land is suitable for development. Paragraph 3.3.1 of the 2001 draft PPW is relied on by Mr Williams. It says: 
  “Previously developed (or brownfield) land……should, wherever possible be used in preference to greenfield sites, particularly those of high quality agricultural or ecological value. The Assembly recognises that not all previously developed land is suitable for development. The redevelopment of some previously developed land may not be sustainable due to its location, the existence of valuable habitats, or because it is highly contaminated…..”
However, the opening words seem to me to emphasise what is obvious that it is ordinarily better to use previously developed sites than greenfield sites. Of course there may be particular reasons why previously developed land may not be appropriate but I am unconvinced that there are any such reasons in this case.
25.	Mr Nardecchia submits that this was at the time only draft policy and that draft policies cannot be taken into account in Wales albeit they may be material considerations in England. His argument is developed thus:
 Paragraph 53 of PPG 1 provides:
“Emerging policies, in the form of draft Departmental Circulars and policy guidance, can be regarded as material considerations, depending on the context. Their very existence may indicate that a relevant policy is under review; and the circumstances that have led to that review may need to be taken into account.”
His submission is that emerging and unadopted policies have no weight in Wales. There is nothing in the adopted policy guidance to say that they should. The position is different in England because of paragraph 53 of PPG1. But PPG I applies only to England; there is no Welsh equivalent. PGW (1999) paragraph 17.1.2 expressly states that the only English PPGs applicable to Wales are parts of PPG 7 and PPG 14 none of which is relevant to the present case.
26.	It may be that the omission in Wales of an equivalent to paragraph 53 of PPG I is an oversight; I do not know. There is nothing in the Welsh guidance to say that unadopted and emerging policies have no weight in Wales and it would be surprising to find such a significant cross-border difference without the same being highlighted. I do not think PPGs, or their Welsh equivalent, should be construed like statutes; they are after all only guidance. In my judgment paragraph 53 of PPG I simply reflects what has been the practice over time. I am not prepared to conclude the position is any different in Wales. What, however, in my judgment is important is to keep in mind that whether or not emerging policies can and should be taken into account depends on the context and the circumstances. I shall return to this in a moment. 
27.	Accepting, as I have said, that the appeal site is not necessarily suitable for housing development just because it has a general industrial use at the present time, the second inspector has in my judgment failed to justify reaching a different conclusion from the first inspector. He sought to do so by saying that there was a material difference in the situation on the site between 1996 and 2001. In 1996 the site was a fully utilised and functioning general industrial site whereas in 2001 it was a soon to be vacated industrial site. Accordingly, it is submitted, he was entitled to approach the application entirely afresh, I am unimpressed by this argument. Both in 1996 and 2001 the site could lawfully be used, and indeed was in fact being used, for a general industrial purpose.
28.	In my judgment the second inspector never really grappled with the reasons that led the first inspector to allow the appeal in 1996. He appears to have given great weight to the fact that the on-site situation was different in 2001 because the existing occupiers were in the process of moving out and that what the proposed housing was to be compared against had changed. But the plain fact is that, occupied or unoccupied, the existing permitted use was general industrial. It was not, in my judgement, a justifiable assumption in 1996 that but for the grant of permission the site would have continued with its existing occupation. The inspector was not entitled to treat the site as “soon to constitute vacant industrial land and buildings” in 2001, but as a permanently occupied general industrial site in 1996. The site was in 1996, as the second inspector pointed out, too small for the expansion plans of the owners. The second inspector concluded that because of the changes in planning policy and guidance and because of the different situation at the site he should approach the application entirely afresh. In my judgment he was in error in putting completely on one side the previous decision. It was relatively recent and the first inspector spelt out the reasons why he allowed the appeal in 1996. The second inspector appears to have given little weight to these reasons. What seems to me to be of critical importance is that this was not a greenfield site and that there was an acknowledged shortage of housing land in the county. Previously developed land ought to be the first port of call for such housing particularly where, as here, the site was within close range of a wide spectrum of facilities. It does not appear that the second inspector had fully in mind the observations of Mann L.J in the North Wiltshire case that I have cited about the need for consistency and justifying departure from an earlier decision.
Flooding
29.	The Claimant complains that the second inspector also erred in law in dealing with flood risk. Flood risk was not an issue at the first appeal. Before the second inspector there was no objection to the proposal on the ground of flood risk and the expert evidence was that the proposal was acceptable subject to the imposition of conditions regarding finished floor levels and emerging access.
30.	The second inspector identified the second main issue as whether or not the proposed development would be subject to an unacceptable degree of flooding. His conclusion on this issue was: “on the basis of the information before me, I am not satisfied that there is enough evidence to show that the residents of the proposed development would be sufficiently free of danger from the risk of flooding to warrant a grant of planning permission”. The site was therefore, in his view, inappropriate and unsuitable for new residential development. Strictly speaking therefore he did not answer the question he had posed, namely whether or not the proposed development would be subject to an unacceptable degree of risk from flooding.
31.	The question was correctly posed, submits Mr Nardecchia, because it reflected PGW(1999) paragraph 3.1.4 :
“Applications for development should be allowed unless the proposed development would cause demonstrable harm to interests of acknowledged importance.”
 However, when the inspector came to answer the question he put the onus the other way round saying there was insufficient evidence to show the residents would be free of danger. In my judgment there is force on this submission.
32.	Mr Williams case on flood risk can be summarised thus. The Environment Agency had, in correspondence, softened its approach without any rational justification for doing so and furthermore its approach was not in accordance with the precautionary principle which should be adopted when considering planning applications in relation to flood risk. This principle is a fundamental element of sustainable development.
33.	The inspector referred to PPG 25 on development and flood risk in England. This came into effect in July 2001 and applies only to England and not Wales. Mr Williams submits that the inspector referred to it not in respect of policy but only to support the factual evidence that the site was below the 1 in 200 year storm tide level  of 6.8m AOD and that one should take into account an annual allowance of 4mm per year for sea level rise due to climate change. The 1 in 200 year storm tide level is not I think in dispute. The projected annual rise in sea level is something that seems to me to be rather more speculative and not a factor that the inspector was entitled to take into account at the very least without first putting it to the Environment Agency for its view in the context of this case.
34.	The other area over which there has been some dispute is technical advice note TAN 15. The inspector appears to have regarded this as overtaken by the February 2001 draft PPW. He said:
“In February 2001 draft PPW notes that TAN 15 on the matter will be revised as soon as possible and states that the precautionary principle should be adopted when considering planning applications relating to development and flood risk. It is emphasised that this principle is a fundamental element of sustainable development and should be applied on the basis that climate change is likely to increase flood risk. It is advised that development should be guided away from flood risk areas and residential development is one of the categories which may not be appropriately located within areas at risk from flooding.”
35.	It is certainly true that there has been an increasing awareness of the risk of flooding in the light of experience in recent years, but it seems to me that great care is required in following draft policies as against established policies particularly without seeking the specific input of the Environment Agency. The inspector said that the Agency had not followed the precautionary principle but in my judgment there is no evidence that this is so and such a conclusion should not be reached without first hearing from the Agency.
36.	The inspector said at paragraph 24, when referring to the inconsistency of the Environment Agency’s position, that there was no explanation why the original stipulation that the site be raised to 6.8m AOD was altered to refer only to floor levels rather than the site level as originally advised. In fact the finished floor levels were to be set at 6.9m AOD, a figure agreed between the Environment Agency and the Claimant’s expert witness and not questioned by the inspector.
37.	Finally, there appears to be no evidence to support the inspector’s conclusion that the emergency access route approved by the Environment Agency would be difficult to use in practice.
38.	There was no evidence that the site had ever flooded. It is true that it is in the River Dee’s tidal floodplain outline of the one in two hundred years storm tide level but the Environment Agency, a statutory consultee, did not attend the inquiry and, having originally lodged an objection, withdrew it before the hearing. The second inspector said that there were uncertainties and some inconsistency in the Environment Agency’s approach and that because they did not attend the inquiry further explanation as to their position in respect of flood risk and the appropriate approach to the proposed development could not be obtained. If this was a matter of importance, as the inspector clearly thought it was, he should have taken steps to clarify matters with the Environment Agency, if necessary by adjourning the inquiry for it to attend or send in a written response. The Environment Agency did not attend the inquiry because it agreed with the other parties on the flood risk question. The Environment Agency’s original position as expressed in a letter of 29 February 2000 was:
“Although the site is defended to the appropriate standard, the risk of flooding from overlapping of the defences by an event in excess of the design standard, or through breach of the defences, would place the development at such level of unacceptable risk that the Agency has no option than to OBJECT to this application.”
The Agency sought a meeting with the planning authority to discuss the structural integrity of the existing tidal defences.
39.	On the 14 June 2000 the Agency wrote again maintaining its objections saying that a letter from Peter Mason Associates addressing drainage issues had not overcome its objection regarding flood risk. It asked for certain conditions to be imposed in the event of a grant of planning consent. Then on 3 October 2000 the Agency wrote saying it was prepared to withdraw its objection on three conditions namely:
i)	The site level is raised to a minimum level of 6.8m AODN and finished floor levels are set out a nominal level (above) this.
ii)	Emergency escape access is created on the adjacent higher ground for use in the event of a flood.
iii)	This relates to surface water run off and it is unnecessary to repeat it.
40.	Finally on 13 December 2000 the Agency wrote to the second Defendant saying that the site was within the River Dee’s tidal flood plain outline of the I in 200 year storm tide-level and that the area would be inundated by that level of water occurring if there were no river defences in place. Although the site was defended from flooding by tidal flood defence embankments maintained by the Agency, the level of the site was lower than that of the storm level within the River (6.8m AODN). Therefore, should a breach of the defences or overlapping occur, the site would be at risk of tidal flooding until a repair could be effected. The letter concluded: “In order to prevent any flooding of the site under such conditions, the Agency has stipulated that a minimum floor level above the tidal flood risk level (6.8m) must be achieved, including provision for safe evacuation of residents from their houses to higher ground (i.e the road overbridge). A letter initially said not have been before the inspector (but in fact attached to Mr Mason’s proof) dated 13 September 2001 confirmed the acceptability of the principles illustrated in certain drawings showing finished floor levels set at 6.9 AODN.”
41.	At the inquiry the Claimant called Mr Mason who gave evidence on flood risk. Mr Williams says the inspector, without objection, asked him some questions because he had in mind paragraphs 20.1 and 20.2 of the public consultation document draft Planning Policy Wales dated February 2001. This refers, among other things, to the precautionary principle on flood risk when considering planning applications. Mr Mason’s evidence was that it would be safe and he accepted the Environment Agency’s conditions.
42.	The proposal was not in conflict with any development plan policy for flood risk. Nor was any evidence given against the proposal on this basis at the inquiry. Mr Nardecchia’s submission was that the draft policy document of February 2001 was not a material consideration, or that if it was, little weight should be given to it. On the other hand, he says that if the court is going to pay regard to it, it should have in mind paragraph 20.5:
“It is essential that the Environment Agency’s advice is obtained and given due weight on a material consideration by a planning authorities in determining individual planning applications. Planning authorities must have good reasons for not following the advice of the Environment Agency and these should be reported to the Environment Agency prior to planning consent being granted”
43.	The Environment Agency is, after all, a statutory agency and one would expect it to be fully apprised of the material circumstances. In my judgment there was no evidence before the second inspector to justify a conclusion that there was an unacceptable risk of flooding. Such risk as there was could be met by compliance with the Environment Agency’s conditions.
Accessibility
44.	There is a minor issue about accessibility to Saughall. The second inspector said that while the nearest facilities may well be within notional walking distance, the post office and general store are about 1.2km away. Pedestrians would have to walk alongside a straight road, subject only to the national speed limit and used by fast moving traffic, and then negotiate a sharp steep slope. Mr Nardecchia submits that this assessment of distance does not accord with the undisputed figures. However, it does not seem to me to be inconsistent with the site being a quarter of a mile from the edge of Saughall Village and half a mile from its centre. I do not detect any error of fact here. The point being made by the second inspector is that access on foot to Saughall is not that easy albeit he accepts that most of the residents would travel by car. The point, so far as it goes, is being made by the inspector to support his conclusion on sustainability but I do not think it adds up to a great deal.
Conclusion
45.	Although the second inspector was entitled to reach a different conclusion from the first inspector, clear justification was required for doing so. It is true that the second inspector did give reasons for departing from the first inspector’s decision but in my view he overstated the degree of change in planning policy and guidance and erred in his treatment of what was actually happening on the site. Also, for the reasons I have given, I think he erred in elevating flooding to the status of a serious issue which it was not. Finally, he failed to give adequate weight to the reasons why the first appeal has succeeded. This was after all the same development on the same site and the interval between the two appeals was relatively short. I have asked myself whether in truth these are all matters of planning judgment in respect of which this court should not interfere, rather than errors of law with which it should. I am satisfied, however, that in his approach the second inspector erred in law. The decision must therefore be quashed and the appeal remitted for the rehearing before a different inspector.
- - - - - - - - - - - - -
MR JUSTICE SCOTT BAKER:  For the reasons given in the judgment that has been handed down, this claim succeeds.  The first defendant has agreed to pay the claimant's costs in the sum of £13,975.