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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> George Wimpey UK Ltd., R (on the application of) v First Secretary of State [2007] EWHC 475 (Admin) (23 February 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/475.html Cite as: [2007] EWHC 475 (Admin)

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

		Royal Courts of Justice Strand London WC2
		23rd February 2007

1. MR JUSTICE COLLINS: This is a claim under section 288 of the Town and Country Planning Act 1990 which seeks to quash the decision of an Inspector dismissing the claimant's appeal against the second defendant's failure to determine an application for outline planning permission and the refusal of a further application for planning permission. Each application related to a site of what had been industrial premises in Gamesley in Derbyshire. The first was an application for outline permission for not less than 30 dwellings. The second was for the construction of 37 dwellings. The second defendant opposed both at the appeal hearing.
2. The appeal site is former industrial land of some 0.8 hectare in area. Its use as a distribution centre ceased in February 2002. Since then, the site and buildings have remained unoccupied. The building, which was used as a warehouse, has been vandalised and the whole site is now derelict and described as an eyesore. Efforts to market it, to take up the existing industrial use, have been unsuccessful. Thus the Inspector found in relation to the possible use of the site for the purposes for which it was allocated, namely industrial use, as follows in paragraph 26 of his report:

"Whilst the interest in the site shows that there is some demand for premises like these in the area, I am persuaded by the Appellant's argument that the location of the site, local highway conditions, the poor physical condition of the building, the capital costs associated with its refurbishment and its operational shortcomings all militate against its re-use."

3. In these circumstances, the claimants have acquired the site for the purpose of residential development. This would have the advantage of putting into use a site which is otherwise going to remain unused and derelict.
4. The Inspector's decision was given on 15th December 2005 following an inquiry which took place on 20th and 21st September 2005. This claim was lodged in January 2006, and it is indeed unfortunate that it has taken over 12 months for the hearing to take place.
5. There were, as the Inspector found, two main issues which arose in the appeal before him. What he said in paragraph 5 of his decision letter was:

"From my inspection of the site and its surroundings and representations made at the Inquiry and in writing, I consider the main issues in respect of both appeals to be:

(i) the implications of the proposal for employment land in the Borough; and

(ii) whether the proposal is justified having regard to national and local planning policy objectives and other material considerations regarding housing development."

6. As is well known, planning applications must be determined in accordance with the provisions of the development plans unless material considerations indicate otherwise. It is therefore necessary to identify the relevant policies which are material in the applicable plans.
7. The plans in question are three in number, namely the Regional Spatial Strategy for the East Midlands, published in March 2005, known as RSS8; the High Peak Local Plan, again adopted in March 2005, the Local Plan; and the Derby and Derbyshire Joint Structure Plan which had been adopted in January 2001. That is the Structure Plan.
8. Taking them in date order, the Structure Plan provided for the provision of some 5,500 dwellings between 1991 and 2011 in the High Peak Borough. Of these, 2,000, or 100 a year, would be located in the Glossopdale area, which is the relevant area with which this case is concerned. Both RSS8 and the Local Plan were dated March 2005, as I have said. The latter followed an inquiry before an Inspector which took place in 2004. The Inspector reported in June 2004 and that report is highly material to the decision with which this claim is concerned and I will have to refer to it in some detail in the course of this judgment.
9. The relevant policies in RSS8 are, first, Policy 11, which is under the heading "Spatial Priorities for Development outside the Peak District National Park". In introducing that policy this is said in paragraph 3.5.21:

"The towns in the Peak sub-area outside the National Park have close functional relationships with large urban area within and outside the region -- Buxton, Glossop, New Mills, Whaley Bridge and Chapel-en-le-Frith with Greater Manchester ... Given these relationships and the effects of the restraint policy in the National Park, these towns are likely to be subject to particularly strong development pressure. The assumptions underpinning housing policy for the National Park are set out in Appendix 3. However, the restrictions on housing do not imply that compensatory general market housing should be met elsewhere in the sub-area. This would be inconsistent with the objectives of urban regeneration of the surrounding conurbations."

10. The relevant urban area for our purposes is Manchester, as I have indicated. Then the policy reads as follows:

"Development Plans, Local Development Frameworks, Local Transport Plans and economic development strategies covering the Peak towns outside the National Park should aim to meet needs whilst reducing past levels of in-migration, discouraging additional commuting to, and supporting the regeneration of, the nearby conurbations. The emphasis will be on:

- retaining and generating local employment. In particular, policies should make provision for the growth of indigenous firms and attracting inward investment to support their own population and the population of the surrounding rural hinterland;

- restraining new housing development except where the local need for modest growth is identified."

11. Then there is a reference to the need to ensure that all new development respects the high quality environment of the area.
12. There is also Policy 17, which is the regional housing provision, under the heading "Regional Priorities for Housing". In paragraph 4.1.2 this is stated:

"In line with the Regional Assembly's Integrated Regional Strategy and PPG3, RSS8 seeks to ensure that good quality housing is available to all within the East Midlands, and that the distribution of housing provision across the region supports the RSS Objectives in Policy 1. Particularly important in this respect will be ..."

13. Then there are various bullet points. The first:

"ensuring that sufficient additional housing is provided to meet requirements, taking into account anticipated growth based on past trends and future prospects in the region."

14. Then a subsequent bullet point:

"encouraging provision on previously developed land and facilitating access by non-car modes in line with the sequential approach and sustainability criteria in Policies 2 and 3."

15. The Regional Housing Provision in Policy 17 provided that for each Structure Plan area for the period 2001 to 2021 housing provision should be made at particular annual average rates. In Derby and Derbyshire that was to be 2,550.
16. The Structure Plan had indicated that under its housing policy provision would be made for housing development in High Peak Borough between 1991 and 2011 for 5,500 dwellings, or 275 per year, of which 2000 or 100 a year would be located generally in the Glossopdale area. Then the Local Plan dealt with housing under Chapter 7. There are a number of extracts which I ought specifically to refer to. At paragraph 7.1 this is said:

"Providing proper housing is one of the Council's principal aims. It is important that there is an adequate and affordable home for all High Peak's residents. The Council has a direct role in housing as a Housing Authority and provider of social housing. However, the planning system also has a critical role to play in influencing the scale, location and improvement of an area's housing resource."

17. Then there is reference to RSS8 and the Derbyshire Structure Plan, and it is noted in paragraph 7.3 that a policy of restraint is needed to avoid urban sprawl and support regeneration within the conurbation in areas of Derbyshire adjacent to Manchester, and this is said:

"In the towns of the Peak sub area the RPG reiterates that there should be an emphasis on restraining housing development except where development plans identify the need for modest growth."

18. Then reference was made in paragraph 7.6 to a key element of Government policy being "the promotion of sustainable development by encouraging building on previously developed land and making better use of finite land resources", the purpose behind that being to minimise the loss of undeveloped or so-called greenfield sites and the desire to reinvigorate urban living and maximise the development potential of existing urban land and building. The contrast was drawn between the greenfield sites and the so-called brownfield sites which cover previously developed land.
19. Then in 7.11 to 7.13 this is said:

"7.11. In order to promote the development of brownfield land, greenfield housing will not be permitted except where it is specifically permitted under [specified policies, including one to which it will be necessary to refer, H2].

"7.12. The Local Plan seeks only to identify sufficient land to meet the housing requirements set by the Structure Plan. In two out of three High Peak sub areas there is a significant risk of house building exceeding the Structure Plan provision. In the Central Area some 1,439 homes had already got off the ground by 2003 -- 39 more than the Structure Plan total -- whilst in Glossopdale the combination of homes completed and those with permission comfortably exceeds the Structure Plan figure of 2,000 dwellings.

"7.13. In order to maintain strategic planning objectives for the area and to ensure that urban regeneration in adjacent conurbations is not undermined, it is important that further housing in these areas, on both green and brownfield land, be curtailed. Where an adequate supply of housing exists to meet the Structure Plan provision, new housing will only be allowed in the following limited circumstances:

1 Schemes comprising at least 90 per cent affordable housing

2 Dwellings permitted by [specified policies]

3 Replacement dwellings

4 Dwellings forming an integral part of comprehensive development schemes permitted under policies [which include EMP9]

5 The re-use of a listed building or significant building within a conservation area where housing is the only proven viable alternative to dereliction or demolition."

20. The policy is H1, headed "Principles of Housing Provision", and it reads:

"Planning permission will be given for new housing, giving priority to:

- the redevelopment of previously developed land in built up areas

- conversions and subdivision of existing urban buildings

"Residential development on greenfield land (including renewals) will not be permitted except for dwellings approved under [some specified policies].

"And where an adequate supply of housing exists within a sub area to meet the Structure Plan Housing Provision, new residential development will only be permitted where it falls within one of the exceptional categories listed in the preamble above."

21. There is then reference to Glossopdale. The point is made in 7.16 that the figure for Glossopdale reflected the need to support urban regeneration in Greater Manchester and concern that past rates of building had outpaced the capacity of local infrastructure and employment. Glossopdale was heavily constrained by the surrounding hills, mostly within the Peak District National Park, and experienced considerable congestion on the limited vehicular routes along the principal valley floor. It was then pointed out, and a table provided showing, that there was an oversupply of 349, to which reference has already been made.
22. There was then reference to the specific permission for housing on a greenfield site. This is policy H2. The reason for that is explained. At 7.21 of the plan it is noted that the transport chapter explained the problem of congestion within Glossopdale and the desirability of a new park and ride railway station. Equally, the need for a wider choice of employment sites and employment opportunities would each require what was described as a degree of pump priming, and it was said that one means of achieving this was to allocate an additional small housing site close to the station and employment to help contribute to its cost and pay for the access to both. The Council would work with the passenger transport authorities to secure a comprehensive package of development that delivered the station and access road and housing. It went on:

"In pursuit of this aim the Council will negotiate a contribution from the residential development towards the cost of the accompanying rail and road infrastructure. Housing close to the otherwise isolated station will also provide natural supervision and enhance community safety. As set out above, additional housing is not required to specifically meet the Structure Plan provision figure, but can be justified by bringing forward sustainable transport and employment infrastructure which will benefit the whole of the sub area. In view of this, the housing will not be permitted unless and until the construction of Gamesley Station is certain to proceed."

23. Then the policy, H2, states:

"Planning permission will be granted for residential development at the following site identified on the proposals map to support essential infrastructure; subject to meeting the following requirements.

"Land of Glossop Road, Gamesley (1 hectare)

1 Development will not commence until there are detailed plans approved and a binding contract made to construct the proposed Gamesley station

2 Development will include the construction of an access road to serve the housing, proposed station and employment.

"Conditions will be imposed and/or planning obligations sought to ensure the appropriate provision of infrastructure and timing of development."

24. The site described in H2 is adjacent to, as I understand it, the appeal site, and one of the issues raised by the claimants at the inquiry was that since the appeal site was a windfall site, that is to say one which was not anticipated in the plans that had been available for housing development, and is roughly the same area as that involved in H2, it could be substituted for the H2 site and could provide what was described in paragraph 7.22. It is of course right to point out that H2 makes it clear that the development on the H2 site could only take place if it was certain that the improvement to the railway station was going to go ahead.
25. Finally, I should look at policy EMP9, which comes under the heading relating to employment, as one might expect from its designation. EMP9 is concerned with change of use from industrial or business use. It provides:

"Planning permission will be granted for the change in use of industrial or business land or premises provided that...

"In the case of change of use of a whole site:

1 The continued employment use of the land or premises for industry would perpetuate significant traffic or environmental problems; and

2 These problems could not be satisfactorily resolved by a mixed use development; and

3 The developer can clearly show that there is no market demand for the site for employment use; and

4 The proposed development will be compatible with adjoining uses

"In all cases

5 The development does not conflict with the principles of sustainability or the Green Belt; and

6 The development achieves the strategic aim of the plan, which brings a greater benefit to the area than the retention of the existing use.

"Conditions will be imposed and planning obligations negotiated to ensure that development takes place in a comprehensive manner and promotes the retention or enhancement of employment at the site."

26. Subject to the need to show that the continued employment use of the land would perpetuate significant traffic or environment problems, it is said that the proposed development here does on its face fall within the terms of EMP9, save that it must achieve a strategic aim of the plan. It is said that one of the strategic aims of the plan, and the highly relevant one, is what is described as the restraint on housing development to which reference has already been made and which lay behind the restriction on housing development in the area.
27. The need for restraint was clearly of fundamental importance because of the desire to ensure that Manchester was used for any increase of residential accommodation in order to avoid settlement in towns such as Gamesley by those who would become commuters. This would have a doubly damaging effect in discouraging regeneration of the urban areas and in failing to ensure that local people were encouraged to make use of local employment, and it also would fail to avoid additional congestion on the roads.
28. In addition to the plans, it was also relevant to consider applicable Ministerial guidance. The first is to be found in PPG3. That PPG was dated March 2000 and has been superseded by a new guidance in November 2006, but it is common ground, and indeed clear, that it was material at the time of the Inspector's decision and for the purpose of the inquiry before him.
29. PPG3 requires that there should be a sequential approach, as it is called, in identifying sites suitable for housing. That approach is designed to endeavour to achieve that the sites that are to be preferred are those on which there has been existing development; that is to say brownfield sites. In paragraph 32 of the PPG this is said:

"In determining the order in which sites identified in accordance with the criteria set out in [previous paragraphs] should be developed, the presumption will be that previously developed sites (or buildings for re-use or conversion) should be developed before greenfield sites."

30. Then in 33:

"Local plans and UDPs should include policies for the release of sites for housing development according to the order of priority set out in the first sentence of paragraph 32. This should take account of the likely supply of windfall sites."

31. The last sentence of 33 provides:

"One possible approach to managing the release of land for housing is to divide the plan into three phases, allocating sites for development in accordance with the presumption in paragraph 32."

32. Then 34:

"Sufficient sites should be shown on the plan's proposals map to accommodate at least the first five years (or the first two phases) of housing development proposed in the plan. Site allocations should be reviewed and updated as the plan is reviewed and rolled forward at least every five years. Local Planning authorities should monitor closely the uptake of both previously developed and greenfield sites and should be prepared to alter or revise their plan policies in the light of that monitoring. However, it is essential that the operation of the development process is not prejudiced by unreal expectations of the developability of particular sites nor by planning authorities seeking to prioritise development sites in an arbitrary manner."

33. There has been a new paragraph inserted into PPG3, paragraph 42(a), which reads, so far as material:

"Local Planning authorities should consider favourably planning applications for housing or mixed use developments which concern land allocated for industrial or commercial use in saved policies and development plan documents or redundant land or buildings in industrial or commercial use, but which is no longer needed for such use, unless any of the following apply:

1 the proposal fails to reflect the policies in this PPG ...

2 the housing development would undermine the planning for housing strategy set out in the regional spatial strategy or the development plan document where this is up-to-date, in particular if it would lead to over-provision of new housing and this would exacerbate the problems of, or lead to, low demand;

3 it can be demonstrated, preferably through an up-to-date review of employment land, that there is a realistic prospect of the allocation being taken up for its state use."

34. It is the second of those points which is most material for our purposes because what is said is that the development here would indeed undermine the planning for housing strategy recognised in what I have described as the restraint policy.
35. In addition to PPG3, in 2003 there was further Ministerial advice. The then Minister of State for Housing and Planning, Mr Keith Hill, stated that the intention behind the Communities Plan setting out the Government's vision for sustainable communities where everyone had the opportunity to be decently housed in a prosperous community was to remove barriers to delivering the housing needed and to ensure that the planning system was not a brake on an adequate and continuing supply of sites for housing in sustainable locations. It then said that Local authorities should "provide for at least ten years potential supply of housing" and "put unneeded employment sites back into use through actively considering residential development".
36. Then this is said in supplementing that:

"Paragraph 28 of PPG3 requires local and unitary development plans to identify sites for housing and buildings for conversion and re-use sufficient to meet housing requirements, after making an allowance for windfalls, and manage the release of land over the plan period. The duration of a plan should be for a period of 10 years from the plan's forecast adoption date. This means plans should make provision for at least ten years' potential supply of housing.

"Paragraph 34 of PPG3 requires sufficient sites to be shown on the plan's proposal map to accommodate at least the first five years (or the first two phases) of housing development proposed in the plan. This does not mean plans should only have a 5-year time horizon nor is it guidance directed at the determination of planning applications. The purpose is to safeguard against unrealistic windfall allowances. Identifying sites on the proposals map allows allocations to be drawn on expeditiously if the monitoring required by PPG3 demonstrates that windfalls are not being realised as anticipated. If windfalls are being realised as anticipated not all of the sites allocated on the proposals map (which in aggregate provide sufficient capacity to accommodate the first five years or so of housing development) will be needed during the plan's first five years. Managing their release through phasing allows the timely release of sites in support of sustainable development. The aim is to avoid disruption to housing supply, without undermining a plan-led approach to implementing the site search and allocation sequence set out in PPG3."

37. It could be said that that is at least consistent with an encouragement to make use of windfall sites if they do become available unless to do so would contravene some planning strategy because it would always then be possible, because a windfall site on brownfield land had been used, to obviate the need to use for housing development a site otherwise allocated for it in the plan. That would be particularly material if otherwise greenfield sites would have to be used.
38. It is also noted in the Ministerial Statement that PPG3 encouraged local planning authorities, when reviewing their development plan, to consider whether land currently allocated for employment and other uses might be better used for housing or mixed use developments. The Government's experience was that, despite this encouragement, many authorities continued to reserve an excess supply when it would make sense to consider it for housing.
39. That statement and the plans were, so far as the appellants were aware, the relevant materials, as it were, for the purpose of their appeal. They approached the appeal on the basis of those plans. They were unaware that there had been a further relevant document, namely an indication in June 2005 by the Derbyshire County Council of the guidance that was appropriate for assessing the extent of housing that would be appropriate during a further period than ten years from the commencement of the Local Plan. In fact, it provided for housing provision in Derbyshire between 1991 and 2021, dividing it into series, which were 1991 to 2011, 2011 to 2016 and 2016 to 2021. This is described as interim guidance. The covering letter sent to the Forward Planning Manager of the Environmental Services of the County Council by the head of the Derbyshire and Leicestershire Planning and Transport Team indicated that the new 2003-based population projections which were to be issued later in the year would result in a higher projected housing demand in the region. The relevant provisions in the interim guidance were as follows:

"The Regional Strategy for the East Midlands (RSS8) makes provision for housing to 2021, but provides only a single figure for Derby and Derbyshire as a whole. The revision of RSS8 will make provision for housing to 2026 at district level, but these figures will not be available until late 2007/early 2008. It is therefore suggested that a basis be devised for calculating provisional housing figures at district level to 2016 and 2021 in order to provide a working basis for the development of LDFs and housing allocation LDDs in the City of Derby and Derbyshire districts."

40. A suggested method is set out, and there is a table which produces the relevant figures. It is said that indications were that moving to 2001-based calculations would result in a considerable increase in projected housing demand. This would be taken on board in the development of the revision of RSS8. The accompanying implication was that using 1996-based figures on an interim basis would be conservative in its effect and would be likely to be revised upwards in the light of new information. This was an advantage to using such figures on an interim basis.
41. The Local Plan Inspector was of course aware of the Ministerial guidance of 2003 and the need to provide for at least ten years' potential supply from the adoption of the relevant plan, in this case March 2005. The material findings that he reached are to be found between paragraphs 7.2.27 and 7.2.30 of his report. Those I think I should read:

"7.2.27. In the light of the Ministerial Statement by Keith Hill in July 2003 calling on local authorities to provide for at least 10 years potential supply of housing, some objectors argue that the Plan should make provision for housing until about 2015, some four years beyond the end of the Plan period. It was generally felt that if such provision was to be made, it should take the form of a phased release after 2011 to ensure that targets were not overshot and that land was only released when required.

"7.2.28. I share the Council's concern that to look beyond the Structure Plan period is to take policy into an area of strategic uncertainty. Without clear figures and policy guidance, it is very difficult to know how much additional housing would be needed, especially in circumstances where RPG8 is proposing restraint in support of the wider regeneration objective. Moreover, in circumstances where there is already a significant oversupply in the Central Area, and the likelihood of some over-provision in Glossopdale (even if a policy of brownfield restraint is adopted), it is difficult at this point to justify any additional housing land in these Sub-Areas.

"7.2.29. There is arguably more of a case for further land releases in Buxton, but this presupposes that the current growth strategy for the town is successful and all the allocations are fully built by 2011. In view of the step-change in house-building rates necessary to secure this level of growth, there is some doubt whether this can be achieved in a relatively small, self-contained housing market. It is also pertinent that the Council is committed to preparing a new-style development plan by 2007/2008, well before the end of the current Plan period. By this time it is reasonable to assume that there will be some indication as to how the RPG8 housing provision for Derbyshire will be apportioned among the Districts, enabling informed projections of future supply to be made.

"7.2.30. The objective behind the Minister's statement is to ensure the delivery of sufficient new houses at the required rate. In the circumstances that apply in High Peak, I do not believe that the delivery of housing would be threatened if provision is only made until 2011. I recommend no modification in response to this objection."

42. There is also discussion of what became policy H2, and at paragraph 7.4.23 the Inspector said:

"Given the scale of the predicted housing over-supply, it is incontestable that there would need to be exceptional reasons for allowing an additional 30 or so dwellings to be built. It seems to me that there are two fundamental questions to be addressed. Firstly, is it reasonably certain that there is a commitment to build the station, and that there is a funding gap that can only be bridged if the housing scheme contributes part of the infrastructure. If the answer is yes, then the second question is whether the harm that would result from adding to the over-supply of housing, together with any other disadvantage of the scheme, would be clearly out-weighed by the benefits of having a new station at Gamesley."

43. He went on to decide that on balance, despite some doubts, he could properly approve what became policy H2.
44. It is to be noted that the concerns that he expresses in 7.2.28 relate to the likelihood that the overprovision in Glossopdale would persist over the relevant ten-year period. There was, as he noted, an existing oversupply if one looked to 2011. In those circumstances, coupled with the difficulty of identifying how the RSS8 housing provision for Derbyshire was going to be apportioned among the districts, it meant that it was appropriate to maintain the 2011 date in the Local Plan, despite the Ministerial indication that a ten-year period should be adopted, because in his view there would be no threat to the delivery of housing over the relevant ten-year period if provision was made only until 2011.
45. I turn now to the decision letter of the Inspector against whose decision this claim is brought. As I have already indicated, there were two main issues, the first being the implications for employment land. The Inspector was satisfied that to allow the change of use from industrial to housing would have no adverse effect upon the employment prospects for the area. I need not go into that in any further detail.
46. His reasons for rejecting the proposed development are largely contained in paragraphs 17 to 20 and 29 of his letter:

"17. The above policy framework requires provision of sufficient housing land to meet the needs of the Glossopdale sub-area, which the Structure Plan assesses at 2,000 dwellings (100 per year) to the end date of the Plan in 2011. The Council's most up-to-date housing supply figures (base date 1 April 2005) coincide with the adoption of the Local Plan and show a surplus of 517 dwellings over the Structure Plan requirement, excluding urban capacity and windfall sites. The Appellants do not dispute this over-supply but contend that the provisions do not accord with Government guidance reflected in the Ministerial Statement by Keith Hill in 2003 which requires local planning authorities to provide for at least 10 years potential supply of housing from the date of adoption of a Local Plan. They submit that, based on a straight line post-2011 projection of 100 dwellings per year, the target of 1,000 dwellings for 2005-2015 would not be met, with a shortfall of some 214.

"18. In the alternative, the Appellants refer to interim guidance agreed between the Government Office for the East Midlands and the constituent Derbyshire local planning authorities in June 2005 which sets out a methodology for assessing housing provision after the 2011 end date of the Structure Plan and local plans. The guidance uses the proportion of total housing provision for the County to 2011 set by the Structure Plan as a basis for apportioning to each District the RSS8 housing provision to 2021. Applying this methodology to the appeal cases, the Appellants argue that 600 dwellings will be required between 2005-2011, (ie 6 years at 100 dwellings/year) and 304 between 2011-2015 (4 years at 76/year); a total of 904 units, some 118 short of the projected target. In either scenario, they maintain that the appeal proposals would not conflict with housing provision for the Glossopdale sub-area or undermine the strategic aims of the Plan.

"19. The Council referred me to the findings of the Inspector who conducted an Inquiry into objections to the Local Plan in 2003/04, where Keith Hill's Ministerial Statement was relied upon by some parties in support of their argument for provision to be made for housing to 2015. Here, the Inspector concluded that it would be difficult to determine how much additional housing would be required in the Borough in the absence of clear figures and policy guidance, particularly where the then RPG8 (now RSS8) advocated restraint in pursuance of wider regeneration objectives. He also found it difficult to justify additional housing in the Glossopdale sub-area given the likelihood of over-supply even were a policy of brownfield development restraint to be adopted, concluding that the delivery of housing would not be threatened if provision is only made to 2011.

"20. I see no sound reason to depart from this view. The plan, monitor and manage approach for housing provision advocated in PPG3 and associated documents necessitates regular review of housing requirements and the way in which they are met, and the Council appears to be following this course. The current over-supply in Glossopdale is not insignificant and I agree with the Council that the appeal proposals would materially exacerbate the situation, adding some 37 or so dwellings to the figure. The fundamental restraint on new housing set out in Local Plan Policy H1 is consistent with the strategic objectives in RSS8 that aim to reduce past rates of in-migration, discourage commuting and encourage sustainable regeneration initiatives in nearby conurbations. The appeal proposals would conflict with these objectives and, in the absence of a proven local need for modest housing growth in Glossopdale as provided for in Policy 11 of RSS8, I find the development to be unnecessary. Moreover, I do not consider that a compelling case has been made to permit the proposals in place of the housing allocation on a nearby greenfield site, as the Appellants suggested. In coming to these findings, I acknowledge guidance at paragraph 42(a) of PPG3 regarding the re-use of redundant industrial or commercial land or buildings for housing, but find that the appeal proposals would undermine the development strategy of RSS8 and conflict with housing objectives in the Local Plan."

47. Then in paragraph 29 he says:

"For these reasons I conclude on the second main issue that the proposal would undermine the prevailing strategy of housing restraint that underpins the wider regeneration objectives of the region and would compromise the Council's ability to effectively manage the release of housing land, in turn exacerbating housing over-supply contrary to the objectives of Policy 11 of RSS8, Housing Policy 15 of the Structure Plan and Policy H1 of the Local Plan."

48. The Inspector's view that the approach of the Local Plan Inspector based on the restraint policy should prevail was on the basis that there was no sound reason to depart from it and the suggestion that the windfall site could be substituted for the H2 greenfield site should not be acceded to since there was no compelling reason to do so.
49. The present claim is based broadly on two grounds, although they have been put in a number of different ways. First, it is said that the Inspector failed properly to have regard to the interim guidance of June 2005 since its existence meant that the Local Plan Inspector's reasons for applying the restraint policy as he did were undermined. That guidance in addition showed that there would be an underprovision of housing over the ten-year period to 2015, as the witness who gave evidence on behalf of the Council conceded. There were two ways of calculating the precise extent of the projected shortfall, both of which were put to the witness and both of which are referred to in paragraphs 17 and 18 of the Inspector's decision. The important fact is that either method established that there would be a shortfall.
50. The second ground is that the Inspector failed to give any reasons for rejecting the argument that the appeal site could and should be substituted for the H2 greenfield site. If that happened, there would be no increase in the housing development that was proposed in the plan.
51. There has been a dispute as to the precise extent and effect of the concession made by the witness for the Council. There is before me a statement from the Inspector which deals with this issue. In it he says, in paragraph 8:

"After an adjournment to consider the calculations, Mr Vendy [he was the Council's witness] agreed that employing that methodology, there would be a shortfall in Glossopdale to 2015, notwithstanding the supply situation to the end date of the Local Plan. He also conceded that calculating supply to the Local Plan end date did not reflect the Ministerial Statement regarding 10 years' supply. However, the Council referred to the Local Plan Inquiry Inspector's approach in maintaining their stance regarding housing supply post-2011 and their resistance to the appeal proposals. This is borne out in their adoption of the Plan based on the Local Plan Inspector's reasoning in respect of the Keith Hill statement."

52. The methodology to which the Inspector was referring was that used in extrapolating the supply from the Local Plan's adoption date, namely the straight line approach which produced the shortfall of 240. He does not refer in his statement specifically to the other methodology which produced the shortfall of 118.
53. Mr Vendy has also provided a statement in which he says:

"The Claimant's evidence did not provide an alternative methodology that I could have assessed prior to the Inquiry. Indeed, paragraph 8.5 on page 29 of the Proof of Evidence of John Littman [who was the expert witness on behalf of the appellants] accepted that the supply of housing land in Glossopdale was adequate and argued that the appeal site should be dealt with as an exception to policy H1 of the Local Plan. Counsel for the Claimant presented me with an alternative methodology during cross-examination, which indicated an undersupply. I accepted that this methodology indicated an undersupply, but my written evidence was not withdrawn and it set out my preferred methodology, which indicated an oversupply."

54. In reality it is clear that there was in truth no question but that the concession was rightly made; that if one looked to 2015, as opposed to 2011, there would be a shortfall. Equally, it had to be accepted that if one applied a cut-off of 2011 there was an oversupply. Thus, instead of there being an oversupply, which on the material before the Local Plan Inspector could not be said to be unlikely not to continue if the period was extended to 2015, there was now shown to be an undersupply if one did look to the ten-year period and thus the years after 2011.
55. This did not necessarily mean that the restraint approach should not prevail on the basis that, having regard to the existing oversupply and the fact that the issue would be reconsidered in 2007 or 2008 in the LBF, it was desirable that additional housing should not now be permitted. But, submits Mr Village, it did mean that the Inspector could not properly say that there was no sound reason to depart from the Local Plan Inspector's view, at least without explaining why that was indeed so. He had dealt with this matter in his final submissions in relatively short form. What he had said was this, under the heading "An adequate supply of land does not exist":

"4.5. Whilst it is agreed that there is an adequate supply of residential land to 2011, that does not comply with the clear requirements of national Government planning policy to provide 10 years supply from the date of adoption of the [Local Plan]. Vendy agreed (after a very considerable time allowed for reflection) that this was a correct approach to the assessment of housing supply."

56. Pausing there, the "considerable time" was in fact some 25 minutes or so:

"4.6. On this basis, there is clearly a shortfall in supply, whether based on an assumption of a straight line projection post 2011 of 100, or if one assumes a pro-rata assessment based on the review of RSS (76/pa). The appeal proposals will meet the requirement for that housing to 2015.

"4.7. There can be no basis for a 'cooling off' period, as suggested for the first time in [cross-examination] of Littman ... today, if Policy EMP9 is complied with, still less if there is not an adequate supply of housing. Such a suggestion has no policy basis and again demonstrates the absurd nature of the [Local Planning Authority's] arguments."

57. Mr Forsdick submits that the concessions and the interim guidance are on analysis not material. The Inspector's reasons were based on the restraint policy and he was entitled as a matter of judgment to afford that greater weight than the opposing considerations. There was at the present time an admitted oversupply which would take the situation to 2011. It was therefore entirely reasonable to decide that it was premature to allow the development to take place.
58. He also submitted that the alleged effect of the concessions and the interim guidance had not been identified by counsel representing the appellants as a main issue in dispute. The appeal was based on the argument that the development could properly be permitted because it fell within a section allowed by EMP9 in the Local Plan read with H1. Thus this particular issue was not a principal controversial issue. It is clear that the issue was before the Inspector. One only has to note the 25-minute adjournment leading to the concessions which show how important it was considered to be in the course of the hearing. Those advising the appellants may have thought that the concession would carry the day, but if they did they were incorrect. Nonetheless, they were entitled to consider that it took them a long way and that it and the interim guidance did mean that the local plan Inspector's approach could be shown not to be appropriate.
59. That was essentially what they were suggesting and it must have been obvious why the concessions were sought in cross-examination and why they were regarded as important. Whilst I recognise that the restraint policy persuaded the Inspector that he should refuse permission and that that policy was considered by him to be of fundamental importance, nonetheless he does appear to have accepted the local planning Inspector's views, which he specifies in paragraph 19, without giving proper consideration to the effect of the new material or at least without explaining why it made no difference.
60. It is to be noted in this context that the local plan Inspector's conclusions were driven by his recognition that on the material before him, not only was it not possible to identify what were the likely figures of required housing after 2011 for the relevant district, that is to say Glossopdale, but also that it was likely that there would in any event be an oversupply.
61. The interim guidance made it clear, whatever methodology was applied, that there would not be an oversupply during that period. It seems to me that in those circumstances, had that been before the local plan Inspector, it cannot be said that he would necessarily have reached the same conclusion. At the very least, it would have been a factor that he would have had to have taken into account and it could have decided him to reach a different conclusion. Whether it would or not of course is nothing to the point because if it could, then the Inspector whose decision was the subject of this claim should not have simply followed it without considering what effect the extra material might have had.
62. Furthermore, on what I would describe as the greenfield/brownfield point, Mr Forsdick has submitted that that was not identified as an issue with which the Inspector had specifically to deal. He asserted that there was no concrete section 106 obligation put forward by the claimants indicating how they would meet the objectives which are referred to in H2. This submission led Mr Village to indicate that had he been aware that this point was going to be taken against him, he would have wanted to produce further evidence which showed that indeed there had been such a proposal put forward, and a figure of a contribution of some £330,000 was mentioned by him.
63. It seems to me that that is not of central importance because it is accepted that it would have been open to the Inspector, if he was not satisfied that the proposals put forward were sufficient to meet the objectives described in H2, to have given an indication as to what in his view would have been necessary or appropriate to enable planning permission to be granted, and in particular to have indicated whether any such proposals, acceptable to the Council, should in his view have overridden the restraint policy. In reality he gave no reasons at all for rejecting the approach in relation to H2.
64. It seems to me that this was clearly an issue that had been raised in advance. It was dealt with by Mr Vendy in his statement, which indicated the objections to it. Mr Vendy refers in paragraph 7.36 of his report to it. He says first:

"The Appellant's statement, that the development of the Appeal Site would avoid the necessity to develop the allocated H2 site nearby, is wholly unrealistic. The H2 site is allocated for residential development for the period of the Local Plan, ie until 2011. No mechanism exists for reversing this allocation ... This situation would further exacerbate the housing oversupply position contrary to policy H1 of the Local Plan."

65. That reasoning is not at all persuasive because the Local Plan Inspector himself recognised that policy H2 would only be appropriate if there was no sensible alternative -- I am putting it broadly, but that is what it amounted to -- and there is no reason at all why in any event if it was decided that development on this brownfield site would be appropriate and produce the benefits that at present were to be produced by H2, then any application to develop H2 could be met by indicating that there were in the circumstances material considerations which militated against the application of policy H2.
66. Mr Vendy went on in 7.37 to indicate as follows:

"Of further relevance is the fact that the level of contribution offered by the Appellants would not in itself lead to the construction of the station. The Council anticipate that the overall costs for the station's development would be in the region of £1 million. The only committed source of finance is a £325,000 (approximate) commuted sum from a residential development at Simmondly. In order to ensure that the station's development is an achievable prospect, the Local Plan has put in place a mechanism for delivering a large portion of its funding. The development of the H2 allocation will provide for the station's access road as well as in the region of £500,000 as a substitute for affordable housing provision. Given the sums of money involved and the mechanism already in place for securing the funding, the Appellants [sic] offer is too little and certainly insufficient to justify the undermining of the Local Plan in contributing to the oversupply of housing in Glossopdale."

67. Of course the point that was being made was that it would not contribute to the oversupply because it would substitute for H2 the supply on this particular site.
68. It seems to me that in the circumstances, since this was clearly an issue and, in the light of the decision that the restraint policy was to prevail, an important issue, it was necessary for the Inspector to give reasons why he decided that it was not sufficient. As I have said, it was necessary for the appellants to know whether, if they were able to take action which persuaded the Council that the purposes behind H2 would be met, they could make a further application which would be likely to meet with success or whether, whatever they did, it was the Inspector's view that the restraint policy must prevail. They should know what might suffice, why it was rejected and whether it might succeed otherwise.
69. Accordingly, it seems to me that in both the respects I have indicated the Inspector's decision fell short of what the law requires, and in the circumstances it is clear that there has been substantial prejudice to the interests of the claimants. Accordingly, this claim succeeds and I propose to quash the decision of the Inspector and to send the matter back for reconsideration.
70. MR VILLAGE: My Lord, in the circumstances I formally ask for an order quashing the decision and remitting the matter back to the Secretary of State. That is my first application. My second application is for costs.
71. MR JUSTICE COLLINS: Yes.
72. MR VILLAGE: The third matter, if I may just indicate, I think the figure I mentioned yesterday was 330, which were my instructions as to the figure that was identified in the briefing note.
73. MR JUSTICE COLLINS: 330, not 315?
74. MR VILLAGE: I think it is fair to record, however, that there is still some controversy, even just before my Lord delivered judgment, between the claimant and the defendant, and my learned friend Mr Forsdick pointing out that in the closing submissions of Mr Hardy(?) on behalf of the Council the figure of £200,000 was referred to on 16th September 2005.
75. My Lord, in light of what was said yesterday evening, after exchange, we did not go back and check the position as to whether the 106 was submitted and what was said and so on, but the fact of the matter is, in light of my Lord's judgment, the matter does not arise.
76. MR JUSTICE COLLINS: That is what I think I indicated really yesterday. It seems to me that it is not necessary to go into the precise details of what was or was not any figure offered.
77. MR VILLAGE: My Lord.
78. MR JUSTICE COLLINS: Yes, so far as the principle of costs?
79. MR FORSDICK: The principle of costs I cannot resist. There is no schedule, so we cannot deal with it now.
80. MR JUSTICE COLLINS: So you want an order for detailed assessment?
81. MR FORSDICK: I assume that is what is being asked for.
82. MR VILLAGE: We were down for two days, my Lord, and no schedule was produced, and therefore we ask for --
83. MR JUSTICE COLLINS: Well, it has been two days, it was down for two days, and you have been able to do other things this morning.
84. MR VILLAGE: Yes.
85. MR FORSDICK: My Lord, I have an application for permission to appeal on two points.
86. MR JUSTICE COLLINS: Yes.
87. MR FORSDICK: My Lord, as I sought to highlight through my submissions yesterday, the way in which my learned friend was putting the case placed an undue influence on inspectors to understand the logic of the claimant's case which was not put forward clearly to the Inspector.
88. My Lord, on one point only I want to raise this. I say it is a theme that runs through this case, but there is one point which has obviously significantly affected my Lord's reasoning in respect of ground 1, if I can call it ground 1, which is the Inspector's failure to grapple with the point about the implications of the interim guidance for the Local Plan Inspector's report.
89. MR JUSTICE COLLINS: Yes.
90. MR FORSDICK: My Lord, on that point there is no evidence, no comment in any closing speech anywhere, no suggestion in any document, that that point was alive before the Inspector in terms of how it impacted upon the local planning Inspector's report's reasoning. It is now said that this Inspector should have noticed all of that and should have realised --
91. MR JUSTICE COLLINS: No, surely the position is that it was not known then how the Inspector was going to approach the matter and it was assumed in the submissions that were made that this must have an effect upon the local planning Inspector's decision, and that was, as it seems to me, an entirely reasonable assumption. It is for that reason that the failure of the Inspector apparently to grapple with it is of importance.
92. Now, that may or may not be right, but that is the basis upon which I have reached the decision. It is nothing to do with the Inspector having to think up for himself points. It was a point that was self-evidently apparent.
93. MR FORSDICK: My Lord, in my respectful submission it clearly was not self-apparent. My Lord has found against me on that, but I think it is arguable enough to go to the Court of Appeal that it is not apparent and it is not for the Inspector to understand the assumptions of the parties before him.
94. My Lord, in any event, I come back to the reasoning point in respect of that and I say the chronologies of 78 and 1920 together gives clear reasoning because, as I was at pains yesterday to stress, I see no reason to depart from that view, followed by detailed exposition as to why he should not.
95. MR JUSTICE COLLINS: You can attempt to reargue the case, Mr Forsdick.
96. MR FORSDICK: I seek permission to appeal on those two points.
97. Then on ground 7, my Lord, I was taken aback yesterday at the criticism in reply of me for not raising the section 106 points, given that nothing has been said in any documentation at all about section 106 and that my instructions were flatly to the contrary.
98. MR JUSTICE COLLINS: I have decided that that is not material, what precisely was --
99. MR FORSDICK: My Lord, the way in which I put it in the submissions to you yesterday was that there was no evidence before this court that the matter had been taken any further in front of the Inspector. My learned friend jumped up twice, I think, and said "that is wrong, there was a section 106 agreement for £330,000".
100. My Lord, in fact if my Lord --
101. MR JUSTICE COLLINS: That I have decided is in no way determinative.
102. MR FORSDICK: My Lord, I say if there was no decision on the section 106 agreement it is arguable that he is under no obligation to deal with it, for the reasons I mentioned yesterday. That is my application.
103. MR JUSTICE COLLINS: Mr Forsdick, if you want to persuade the Court of Appeal you can do so, but it is not in my view a case which merits leave to appeal. It seems to me to be a case depending on its own facts.
104. MR FORSDICK: There is one matter, my Lord, on that. We have to renew before the Court of Appeal because it is a matter that has to go before the DCL legal department.
105. MR JUSTICE COLLINS: Also because it is not a hand-down. So do you want to look at the transcript before you --
106. MR FORSDICK: What normally happens in these cases is that PINS(?) does a sort of screening to see whether it wants to take it further. So it needs the judgment to do that. Then if it decides it wants to do that, it goes up on the DCLG --
107. MR JUSTICE COLLINS: What is the normal period you need?
108. MR FORSDICK: It is normally 21 days.
109. MR VILLAGE: My Lord, can I just say, this case has now been dragging on since 2005.
110. MR JUSTICE COLLINS: I know, I am concerned that --
111. MR VILLAGE: My clients are very concerned to be able to get back before an Inspector as soon as possible on it.
112. MR JUSTICE COLLINS: I agree. But in one sense any delay, provided it is not too long a delay, may be beneficial to your clients, having regard to what is expected on reviews and so on. Maybe; I am not saying will be.
113. MR VILLAGE: Yes.
114. MR JUSTICE COLLINS: This land presumably has now remained derelict for even longer.
115. MR VILLAGE: Yes, but, my Lord, in fact now, because of the publication of PPS3 in November 2006, the position has moved and I have not, for the obvious prejudice it would cause, mentioned it, but it has moved substantially in our favour now. So we really do want to get back.
116. MR JUSTICE COLLINS: Of course. I well understand that.
117. MR VILLAGE: A careful note has been taken by my learned friend.
118. MR JUSTICE COLLINS: Of course you can make a fresh application anyway if you have better prospects.
119. MR VILLAGE: Well, the application fees now are enormous.
120. MR JUSTICE COLLINS: Are they?
121. MR VILLAGE: £50,000, my Lord, just to make an application these days.
122. MR JUSTICE COLLINS: Good heavens! Yes, I can see even litigation might be cheaper, presumably even with you, Mr Village.
123. MR VILLAGE: So, my Lord, I would simply say they can make their mind up pretty quickly.
124. MR JUSTICE COLLINS: I agree, but I think it is reasonable to allow them time to look at the transcript. That can be expedited.
125. MR VILLAGE: Could we say 14 days from the transcript?
126. MR JUSTICE COLLINS: I think that is not unreasonable. You will have made a note, so you will have a preliminary view. All right, 14 days from the transcript. I am told that the likelihood is that the transcript should be available within about a week, and in those circumstances there will not be any great delay in any event if I say 14 days after the service of the transcript. All right?
127. Thank you all.