Pembrokeshire Coast National Park Authority, R (on the application of) v National Assembly for Wales & Anor [2003] EWHC 2105 (Admin)

CO/1352/2003 & CO/1540/2003

[2003] EWHC 2105 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday, 24 July 2003

Strand

London WC2

B E F O R E:

MR JUSTICE PITCHFORD

Between

THE QUEEN ON THE APPLICATION OF PEMBROKESHIRE COAST NATIONAL PARK AUTHORITYClaimant

-v-

Between

NATIONAL ASSEMBLY FOR WALESDefendant

LYN DELABATOUCHEInterested Party

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR J PERIERA (instructed by Sharpe Pritchard, London EC1V 6HG) appeared for CLAIMANT

MR P MARSHALL (instructed by the Treasury Solicitor) appeared for DEFENDANT

for The Interested Party did not appear and was not represented

J U D G M E N T

[1]MR JUSTICE PITCHFORD: This is an appeal by Pembrokeshire Coast National Park Authority under section 288 Town and Country Planning Act 1990 against an inspector's decision allowing the appeal of Mrs L Delabatouche, who had been unsuccessful in her application to the authority for planning permission. In a linked claim in which permission to proceed has been granted, the National Park Authority challenges the inspector's decision to award the costs of the appeal to Mrs Delabatouche.

[2]The property concerned is Sherebourne, situated in Sutton Street, Tenby. It is the south-eastern half of a non-identical semi-detached pair of late 19th-century town houses on the north-east side of Sutton Street near its junction with the esplanade on the sea front of Tenby. It is a substantial mid-terrace three-storey house. Before 1972 it was occupied as a single dwelling and was later arranged on four floors as three self-contained flats, the owner occupying the basement and ground floor. At the end of 1975 it was converted to a guest house with eight bedrooms.

[3]Mrs Delabatouche and her husband purchased the property in 1989 and ran it as a guest house. At the time of her appeal she had recently been widowed. She could no longer sustain the business and planned to live in the ground-floor maisonette and to sell the upper floors with consent for two flats, thus realising part of the equity in the property and enabling her to continue as a resident in her former matrimonial home.

[4]Her planning application was dated 2 February 2002, received by the authority on 7 February 2002. It was and is common ground that the statutory development plan for the area in which the subject property is situated consists of the approved Dyfed Structure Plan (1st Alteration) 1990 and the adopted Pembrokeshire Coast National Park Local Plan April 1999.

[5]The National Park Local Plan Policy GE7 provides as follows:

"Planning consent will be given for the change of use of land or buildings, (including their adaptation), provided the following criteria are met in full: (1) the land or building is physically capable of accommodating the new use and any associated requirements; (2) the proposal does not result in the retention of a prominent structure which is inappropriate or unsightly; (3) the proposal does not involve the introduction or intensification of either • a use inappropriate to the existing building or its locality or • a use incompatible with the [National Park's] Special Designation; (4) in countryside locations, ie outside the main settlements of the Plan area as defined in policy GE2, the conversion of buildings which require complete or substantial rebuilding will not be permitted; (5) due regard is paid to the welfare of any wildlife, particularly bats and barn owls or other species afforded statutory protection, which live in the structure."

[6]It is common ground that the application met the relevant criteria. The inspector noted, without criticism, that the local plan was in general accordance with paragraph 10.2.4 of Planning Policy Wales issued in May 2002, which stated that development in town centres should encourage a diversity of uses.

[7]By section 54A of the Town and Country Planning Act 1990:

"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."

At the appeal, the National Park Authority argued that the development conflicted with the emerging Joint Unitary Development Plan (JUDP) promulgated by the National Park Authority and Pembrokeshire County Council. The argument is encapsulated in the following sentence taken from paragraph D17 of the authority's written submissions on appeal: it was argued "it would not be appropriate or responsible to pre-judge the outcome of the JUDP process by granting unfettered permissions which once approved could never be retrieved for local/essential needs."

[8]It is common ground that an emerging policy is a material consideration to be weighed against the statutory development plan for the purposes of section 54A. It is therefore necessary to trace the emergence of the policy.

[9]In December 1999 the county council and the National Park Authority published for comment an option paper with a view to consultation before the preparation and public deposit of a JUDP. One key issue was the perceived pressure on the housing market causing difficulties for local people seeking homes within the national park. In May 2000 the National Park Association Authority Policy Committee resolved to develop a policy by which land suitable for development with within the park would be reserved for occupation by individuals who met criteria as local residents and/or essential need. The object of the policy was that unfettered development should take place only outside the national park area.

[10]The National Park Authority sought the advice of counsel. While the policy had desirable aims, it was thought that, having regard to Articles 8 and 14 and Article 1 of its First Protocol, European Convention on Human Rights, firm evidence would be required to justify the policy. In a report to an extraordinary meeting of the National Park Authority on 23 January 2002 the Development Plans Officer advised members that "this was in the process of being addressed". Members were informed that concerns had been expressed by interested parties, but were assured by the National Park Authority solicitor that not only was their approach justifiable and legitimate, but interested parties would have a further opportunity to comment when the JUDP was placed on deposit. Members voted to accept the proposed draft development plan, including amendment H to the DPO's report of 12 December 2001 and proposed policy 47. At the same meeting members of the authority were informed that the draft JUDP would be placed on public deposit, that in the event of objections there would be a public inquiry and that there may be changes to the plan. Formal adoption was likely to be at least two years away. By the date of the appeal it was thought that late 2004 was realistic (see paragraph 12 of the inspector's decision).

[11]The minutes of the meeting record the following:

"In this regard, a joint report was circulated at the meeting, which was the result of prolonged discussions between the Development Plans Officer, the Solicitor, the Authority's Barrister and the Development Control Officer, and which continued to endorse the general approach set out in the report of 12 December 2001, namely:- (A) that the draft policy relating to new housing and local needs should be applied to all applications for new housing development in the National Park, and (B) that applications for new housing development might be refused on grounds of prematurity, depending on the circumstances of each case, and taking into account all material considerations. However, the question then arose as to the date from which the draft local needs housing policy became effective for development control purposes. This was a difficult and, inevitably, contentious decision, which required a balance that took into account:- (A) the need for proper planning of the area in the public interest, and (B) the need not to prejudice the outcome of the UDP process as regards housing policy, and also (C) the need act fairly towards applicants for planning permission. On balance, therefore, officers recommended that, in the interest of fairness, the draft policy should apply to all applications received by the Authority after the date of the meeting that day (23rd January 2002), ie the date on which the Authority agreed that the proposals were accepted as the policy of the Authority for inclusion in the Draft Deposit Plan. For the avoidance of doubt, an application would henceforth only be exempt from being considered in the light of the draft policy if a complete, valid, and in all respects registrable application had been received by the Authority by the close of business (being 5.00pm) on the 23rd January 2002."

The members resolved to accept that recommendation.

[12]Mrs Delabatouche's planning application was considered at a meeting of the authority on 17 April 2002. On that day, and before the application was considered, members were presented with a "Joint Report of Head of Conservation and the Solicitor to the Authority". In it, the Authority was given guidance upon the question how planning applications received following 5.00 pm, 23 January 2002 should be considered pending the adoption of the JUDP.

[13]Following an introduction and preamble to the issue of prematurity, the report proceeds:

"It was explained that section 54A of the 1990 Planning Act requires Authorities to determine planning applications in accordance with the provisions of the Development Plan unless 'material considerations indicate otherwise'. The Development Plan means the Dyfed County Structure Plan, and this Authority's Local Plan. However, the emerging policies of the Joint Unitary Development Plan which will be placed on Deposit in May are themselves 'material considerations'. The Authority's draft new Housing Policy is such an emerging policy, and so must be taken into account as a material consideration. The weight to be attached to the emerging policy depends upon the stage of plan preparation reached and the number and type of objections made to the policy. For this reason it would not be appropriate to refuse at this stage in the plan process a planning application for breach of that emerging policy. However, national guidance advises us that where a plan is in the course of preparation and proposals have been issued for consultation but the plan has not yet been adopted it may be justifiable to refuse planning permissions on the grounds of Prematurity. Prematurity as a ground of refusal may arise in respect of those proposals which are individually so substantial, or whose cumulative effect would be so significant that to grant permission would prejudice the outcome of the Development Plan process so as to determine decisions about the scale, location or phasing of new development which ought properly to be taken in the development plan context. The guidance states that such a refusal would not usually be justified except in cases where a development proposal goes to the heart of the Plan. Draft Policy 47 seeks to give effect to the underlying strategy of the JUDP on the location of housing. The strategy agreed by the two authorities is that the only new housing located within the national park should be housing meeting local needs, whereas unrestricted housing should be located in the County outside of the national park. For this reason, the issue of the location of housing development is at the heart of the plan, and planning permissions for unrestricted housing within the national park may -- depending on their particular facts -- predetermine these issues."

[14]I need to interrupt this quotation from the report to identify the terms of draft policy 47. It reads:

"It is the policy of the Pembrokeshire Coast National Park Authority that new residential development will not be permitted in the National Park unless the applicant demonstrates that the development will meet: I) a need for residential accommodation for local person/s and/or Ii) an essential need to live within the Sustainable Community. In addition the applicant must demonstrate there is no suitable alternative accommodation available within the Sustainable Community. A planning obligation will be secured by agreement, and/or a planning condition imposed, to ensure the occupancy of the dwelling is confined to local persons or those with essential need in perpetuity."

I should explain that Tenby, the town in which the proposed development would have taken place, was Sustainable Community No 4 South East Coast within the meaning of the emerging policy. Mrs Delabatouche was not prepared to be bound by such a condition.

[15]The report continues:

"In order to assist Members to make the careful judgment that such cases demand it is proposed that we adopt the following approach. Each planning application for which the new Housing Policy would be a material planning consideration, will be the subject of a prematurity assessment as to the impact on the emerging plan of giving an unrestricted planning permission for that application. This will contain Officers' conclusions as to whether or not the proposal goes to 'the heart of the Plan'. Issues that may be relevant in individual assessments include: (i) the size of the site and number of units proposed; (ii) the proportion of housing provision in the park and in the relevant sustainable community which that site represents; (iii) the environmental sensitivity of the site; (iv) the importance of the emerging policy in the context of planning for housing in the JUDP area and planning for the National Park in particular; (v) the importance of the emerging policy in the context of the plan as a whole; (vi) the impact of granting permission, and not granting permission, on the particular settlement and the National Park; (vii) overall, whether granting permission would prejudice the outcome of the plan process so as to predetermine decisions about housing development which ought to be taken in the development plan process. The assessment as to whether the proposal goes to the heart of the Plan will be made in a separate Appendix annexed to the Development Control Report. Officers will summarise the conclusions reached in the Appendix, and include these in the usual Development Control reports on individual applications. In this context, it is considered that a Section 106 obligation which restricts the occupancy of new dwellings to those who would satisfy the terms of Draft Policy 47 will meet the prematurity objection (provided that a suitable occupant exists). Granting restricted permissions protects the position, because if the emerging policy is adopted, the plan process will not have been harmed in the meantime."

Under the title "Fairness" the authors recognised that a new policy would give rise to issues of fairness concerning the individual applicant. The development control report would, members were assured, deal with fairness in making recommendations in individual applications. At the end of the first paragraph under that title appears the following:

"A judgment will then have to be reached balancing on the one hand, fairness to the applicant, and on the other hand, the harm to the emerging development plan and the strength of any prematurity objections in the given case."

[16]In a meeting which lasted just over an hour, members adopted the recommendations. The same day the authority met to consider individual applications, of which Mrs Delabatouche's application was one. The development control officer, Mrs Milner, provided a report. The authority was informed that no objections had been received. In particular, Tenby Town Council and Tenby Civic Society informed the Development Control Department that there was no objection. Mrs Milner continued:

"Members will be considering a report at the Extraordinary Authority meeting on the morning of April 17th as to the suggested way that prematurity and issues of fairness should be addressed when dealing with applications which fall to be considered under the terms of the emerging JUDP policy 'Housing in the Pembrokeshire Coast National Park'. To avoid unnecessary delay this report has been prepared under the the assumption that the recommended approach will be agreed. Dealing with the issues of prematurity and fairness first the appraisal regarding the position in respect of Sustainable Community No 4 is attached in full as Appendix 3 and my view is that approving this change of use to create two new residential units without the ongoing restriction in respect of occupation would go to the heart of the strategy and the plan and prejudice the outcome of the Development Plan process. In respect of fairness in this instance no relevant points have arisen other than the applicants agents supporting statement that the two additional modest two bedroomed units resulting from this proposal would be likely to be purchased by local residents or those with an essential need to live in the locality and would therefore fall into the category of local or essential needs housing. In my view no matters have been raised sufficient to depart from the conclusion in the prematurity assessment that the grant of planning permission in this case would prejudice the outcome of the Development Plan process. As advised previously questionnaires were sent to the applicants agent but no response has yet been received. Given the prematurity assessment permission could not be granted without prejudicing the outcome of the Development Plan process."

The recommendation was made that permission be refused on the grounds that a grant would prejudice the outcome of the development plan and that the proposed development would set a precedent to reduce the few opportunities left for local needs and essential needs housing development in the Sustainable Community.

[17]I shall need to return to the appendix to that report later.

[18]In the first revision of Planning Guidance (Wales) dated April 1999 guidance upon the issue of prematurity is given in terms similar to those contained in the joint report to the National Park Authority of 17 April 2002. However, in May 2002 the National Assembly for Wales published Planning Policy Guidance (Wales) following extensive consultation. Chapter 3 of the guidance now advised at paragraph 5:

"3.5.1 Planning applications must be considered in the light of policies in the adopted UDP. The weight to be attached to policies in emerging UDPs which are going through the statutory procedures towards adoption depends upon the stage of plan preparation (the weight will increase as successive stages are reached) and upon the degree of any conflict with adopted plans. If no objections to relevant policies in a deposited plan have been lodged, then considerable weight may be attached to those policies because of the strong possibility that they will be adopted and replace those in the existing plan. Equally, the converse applies if there have been objections to relevant policies. The nature of objections to, and representations in support of, a policy will also be an important consideration. 3.5.2 Questions of prematurity may arise where a UDP is in preparation or under review, and proposals have been issued for consultation (ie placed on deposit) but the plan has not yet been adopted. In these circumstances, it may be justifiable to refuse planning permission on grounds of prematurity in respect of development proposals which are individually so substantial, or whose cumulative effect would be so significant, that to grant permission would predetermine decisions about the scale, location or phasing of new development which ought properly to be taken in the UDP context. Refusal would therefore not usually be justified except in cases where a development proposal went to the heart of a plan. This requires careful judgment. A refusal might be justifiable where a proposal would have a significant impact on an important settlement, or on a substantial area, with an identifiable character, but would rarely be justifiable if a development proposal impacted on only a small area. 3.5.3 The stage which a plan has reached will also be an important factor in judging whether a refusal on prematurity grounds is justifiable. A refusal on prematurity grounds will seldom be justified where a plan is at the pre-deposit consultation stage, with no early prospect of reaching deposit, because of the lengthy delay which this would impose in determining the future use of the land in question. 3.5.4 Where there is a phasing policy in the plan there may be circumstances in which it is necessary to refuse planning permission on grounds of prematurity if the policy is to have effect. 3.5.5 Where planning permission is refused on grounds of prematurity, the local planning authority will need to indicate clearly how the grant of permission for the development concerned would prejudice the outcome of the UDP process."

[19]In her appendix 3 to her recommendation to the planning meeting of 17 April 2002 Mrs Milner identified within Sustainable Community No 4, 158 units available for future residential development upon which planning permission had not yet been granted or permission had expired. Demand was said to average 38 units per year. Given a policy of limited further development within the national park, the housing land supply would be depleted within about seven to eight years.

[20]Mr Pereira, who appeared on behalf of the claimant, submitted first that the inspector failed to distinguish between a mere breach of the emerging policy on the one hand and the strategy by which the authority sought to preserve its integrity on the other. Once it was accepted that the strategy existed, it was not, he submitted for the inspector to make a value judgment about it but to balance the compliance of the proposed development with the established statutory development plan against the authority's purpose in preserving the integrity of emerging policy 47 until the machinery of adoption was complete and then to make a planning judgment upon the competing considerations. Mr Pereira submitted that the inspector erred in law by failing to take account of the fact of existence of the strategy. What he purported to do in his reasons was to require the authority to justify policy 47 on its merits.

[21]He argued that chapter 3 paragraph 5.1 Planning Policy (Wales), which I have just quoted, was concerned not with issues of prematurity but with breach. Only paragraphs 5.2-5.5 were concerned with prematurity. In my view he is wrong. The title to paragraph 5 is "What happens when a development plan has not yet been adopted?" In the predecessor to Planning Policy (Wales), that is the April 1999 First Revision under the title "Prematurity" chapter 4, paragraph 15.1, almost identical words appear as those in chapter 3 paragraph 5.1 of the 2002 revision. Had it been the intention of the National Assembly to advise that considerations of weight should be attached only to questions of breach, then it would have been a simple matter to say so. On the contrary, I read chapter 3, paragraphs 5.1-5.5 as guidance to be applied whenever reliance is placed upon an emerging policy. An emerging policy may be relied upon not only by the planning authority but also by an applicant. It seems to me that the weight to be applied to competing policies is very much an issue in a consideration of the balancing exercise required by section 54A. Mr Marshall has directed my attention to the speech of Lord Clyde in a Scottish appeal to the House of Lords in City of Edinburgh Council v Secretary of State for Scotland and Revival Properties Ltd

[1997] 1 WLR 1447

at page 1459, cited and applied by the Court of Appeal of England and Wales in R v Leominster DC ex parte Pothecary [1998] JPL 335. Lord Clyde, speaking of section 18A Town and Country Planning (Scotland) Act 1972, the Scottish equivalent of our section 54A, said this:

"In the practical application of section 18A 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 light of the whole plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all of these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed those considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse."

[22]On the preceding page of the report, page 1458, commencing at letter E, Lord Clyde said:

"By virtue of section 18A if the application accords with the development plan and there are no material considerations indicating that it should be refused, permission should be granted. If the application does not accord with the development plan it will be refused unless there are material considerations indicating that it should be granted. One example of such a case may be where a particular policy in the plan can be seen to be outdated and superseded by more recent guidance. Thus the priority given to the development plan is not a mere mechanical preference for it. There remains a valuable element of flexibility. If there are material considerations indicating that it should not be followed then a decision contrary to its provisions can properly be given."

[23]Mr Pereira directed my attention to paragraph 5.2 of chapter 3, in which it is recognised that where a plan has been deposited but not yet adopted, it may be justifiable to refuse planning permission on the grounds of prematurity. The circumstances in which it may be right to refuse are(1) where the proposals are individually so substantial or

(2) whose cumulative effect would be so significant that to grant a planning permission would predetermine questions of scale, location or phasing of new development which ought properly to be considered in the adoption process. The plan had by the date of appeal been deposited. Mr Pereira submitted that the cumulative effect of similar applications would be sufficiently significant that to grant permission would prejudge the very issues which the adoption process was designed to address. In support of his argument as to cumulative effect, Mr Pereira drew my attention to Rumsey v Secretary of State for Environment, Transport and the Regions and Waverly Borough Council

(2001) 81 P & CR 32

. A resident within an area of outstanding natural beauty wished to contract a substantial extension to his existing property. The inspector, having visiting the area and viewed the subject environment, concluded there was an unacceptable risk that if the development was permitted, it would encourage others of a similar type. Counsel for the claimant, who happens to have been Mr Pereira, argued that there was no evidence upon which the inspector could have founded his conclusion. Mr Duncan Ouseley QC, then sitting as a Deputy Judge of the High Court, found that there was evidence comprising the inspector's own visual assessment and the facts in the circumstances spoke for themselves. To similar effect were the observations of Mr David Widdicombe QC in Poundstretcher Ltd v Secretary of State for the Environment

[1988] 3 PLR 69

relying on the judgment of Lord Widgery CJ in Collis Radio Ltd v Secretary of State for the Environment

(1975) 29 P & CR 390

[24]I accept and adopt the words of the deputy

judge in Poundstretcher:

".... in the present case the Inspector clearly had relied on precedent. He accepted Mr Hobson's proposition that where precedent was relied on, mere fear or generalised concern was not enough. There had to be evidence in one form or another for the reliance on precedent. In some cases the facts might speak for themselves. For instance, in the common case of the rear extension one of a row or terrace of dwellings, it might be obvious that other owners in the row were likely to want extensions if one was permitted. Another clear example was sporadic development in the countryside."

[25]As Mr Pereira rightly concedes, the question of adequacy of evidence of the cumulative impact of successive applications upon the emerging policy was a matter for assessment by the decision-maker. However, in this case he submitted the impact was self-evident. Any unfettered development would use up residential units which would thus be lost to the strategy of preservation in favour of local or essential need. Whether viewed individually or incrementally, this proposal went to the heart of the plan within the meaning of chapter 3, paragraph 5.2 Planning Policy (Wales).

[26]Mr Marshall, who appeared on behalf of the National Assembly drew my attention to the conflict between Planning Policy (Wales) and the emerging plan policy 47. At chapter 9, paragraph 1.1, the following guidance is given:

"The Assembly Government's vision for housing is for everyone in Wales to have the opportunity to live in good quality, affordable housing, to be able to choose where they live and decide whether buying or renting is best for them and their families .... "

At chapter 9, paragraph 2.14:

"A community's need for affordable housing is a material planning consideration which may properly be taken into account in formulating UDP policies. It is also an essential element in contributing to community regeneration and strengthening social inclusion. It may be desirable in planning terms that new housing development in both rural and urban areas should incorporate a reasonable mix and balance of house types and size to cater for a range of housing needs .... "

And at paragraph 2.15:

"Where local planning authorities have demonstrated the need for affordable housing, by undertaking a recent local housing needs assessment survey as recommended in the Assembly Government's guidance or by the use of other reliable and robust data sources, such as the housing registers of local authorities and registered social landlords, they should include policies for affordable housing in their UDP for the areas where need has been identified. Targets for specific sites may be set if based on evidence of need and site suitability, but a uniform quota should not be imposed on development regardless of market or site conditions .... "

[27]In October 2002 the Minister for the Environment, National Assembly for Wales issued a press release welcoming the publication of research which recommended ways in which the planning system might deal with the pressure placed on communities by the demand for second and holiday homes. Included in the press release were the following passages:

"The 'Second and Holiday Homes and the Land Use Planning System Research Project' examines particularly the relationship between housing and planning issues. It reiterates that second and holiday homes are not a 'stand-alone' problem, being bound up with problems of affordability, and identifies a contraction of the second and holiday home market into a number of core areas. The research was commissioned by the Welsh Assembly Government as part of a wider programme of study to assist the development of thriving sustainable communities in a strong rural economy. Responding to the recommendations published in the report, [the minister] said: 'I am pleased that the findings support the direction already being taken by the Welsh Assembly Government in its planning policies. Many of the report's recommendations are already being implemented or actively considered. For example, our new Planning Policy Wales supports the Welsh language by ensuring Wales-wide consideration of the language by all local planning authorities. It also confirms the government view that "locals-only" controls are generally legally questionable and difficult to enforce, and that requiring planning permission for changing from a first to a second home results in similar fundamental problems. The report is clear that the best way forward is to ensure planning and housing processes are working together to provide a sufficient supply of affordable housing and choice to meet local needs. Other suggestions, like creating specific sites in development plans for affordable homes and also second home developments, are helpful and could be implemented without any further alterations to guidance. Our next step is to work closely with local authorities in the 'hotspots' on the implications of this work, and the best way to use our current guidance in addressing their problems.'"

The key findings of the research included:- "At a national level, the researchers' estimates of the number of second and holiday homes across Wales show that their proportion of the total housing stock is between 1.31% and 1.52% (2001) depending on the methodology used and there has been between a 10-12% reduction in second and holiday homes over the last 10 years (1991-2001). The main concentrations of second homes are generally clustered in coastal locations from the Vale of Glamorgan to Ynis Mon. In relative terms, they are most significant around Cardigan Bay, notably in Pembrokeshire, Snowdonia, the Lleyn Peninsula and Ynis Mon. New growth areas for second homes are emerging in the Vale of Glamorgan and the eastern part of Carmarthenshire. • There is no national link between second home concentration and house prices but in localised, desirable settings, retirement, commuting patterns and second homes all impact on the pattern of housing policies pushing some locations out of the price range of buyers with relatively less spending power .... "

[28]I turn then to the question: what were the material considerations which the inspector was entitled to identify when considering the issue of prematurity and in reaching his decision? In my view they were as follows:(1) the controversial nature of the proposals, the large number of objections received and the lengthy period of time which was likely to elapse before adoption;

(2) the fact that apparent conflict with national policy might well result in a policy differently drafted;

(3) the size of the proposal and its impact alone or cumulatively upon issues which ought properly to be part of the adoption process;

(4) whether the proposal went to the heart of the emerging plan;

(5) the impact which the proposal would have upon its site settlement area and character;

(6) the quality of the factual material utilised to demonstrate that grant of permission would prejudice the outcome of the UDP process.

[29]Mr Pereira's submission was tantamount to a suggestion that since the authority had resolved to deposit a plan which halted development save where the local interest was preserved, the authority had effectively drawn up the drawbridge until adoption. He reasons that any unfettered development would prejudice the outcome of the adoption process. All other considerations, in effect, became otiose or fell away. I cannot accept that submission. In my view, the inspector was entitled to consider the proportionality of refusing this application against the criteria of prematurity and precedent. He was not required, once he recognised prematurity and precedent, to ignore all other considerations. Indeed, in my view he would not have been entitled to do so. This view was recognised by the authority itself when, on the very day it considered this application, it resolved to adopt a policy that each application should be treated on its own merits. Prematurity and precedence comprised only three of seven separate issues which it was recognised might be relevant to an assessment whether the proposal went to the heart of draft policy 47.

[30]I have looked in vain to find any analysis of those issues in the development control officer's report to the authority or in her written submissions to the inspector and Mr Pereira did not seek to persuade me that there had been any. I find it remarkable that the conservation officer and the solicitor to the authority should advise that all those considerations may be relevant, advice adopted by the authority, but when it came to this particular proposal, no analysis of them was attempted. It seems to me that what consumed the thoughts of the authority when it came to an individual decision was the protection of the emerging policy, come what may. In approaching the application as they did, it seems to me the authority itself was in danger (contra D17 submission on appeal) of prejudging the outcome of the JUDP process. The inspector's principal reasons and conclusions were set out in his decision letter, paragraphs 11-16, but at paragraphs 17 and 18 he considered two further matters. First, the inspector correctly identified the Planning Policy Wales guidance chapter 3, paragraph 5.2. He noted the prolonged delay likely before adoption of the emerging policy and the real possibility that it might not be adopted as drafted. He took account in paragraph 18 of the fact that the emerging policy was in conflict with Planning Policy Wales and with former Welsh Office circular 35/94. It is worth considering paragraph 96 of the circular:

"Subject to the advice about affordable housing .... if the development of a site for housing is an acceptable use of the land there will seldom be any good reason on land-use planning grounds to restrict the occupancy of those houses to a particular type of person (eg those already listing or working in the area). To impose such a condition is to draw an artificial and unwarranted distinction between new houses or new conversions and existing houses that are not subject to such restrictions on occupancy or sale. It may deter housebuilders from providing homes for which there is a local demand and building societies from providing mortgage finance. It may also impose hardship on owners who subsequently need to sell. It involves too detailed and onerous an application of development control and too great an interference in the rights of individual ownership. In the view of the Secretaries of State, such conditions should therefore not be imposed save in the most exceptional cases where there are clear and specific circumstances that warrant allowing an individual house (or extension) on a site where development would not normally be permitted."

[31]The inspector noted that if what was in issue was affordable housing, then at chapter 9, paragraph 2.15 Planning Policy (Wales) the National Assembly advised that the need should be demonstrated by undertaking a local housing needs assessment survey or by the use of other reliable and robust data sources. No such evidence was presented by the authority, only the assertion from average completion rates between 1991 and 2001 that 38 units per year were required. At paragraph 13 the inspector accepted the submission made on behalf of the appellant that if the authority sought to preserve the strategy of the emerging plan, they should at least be in a position to demonstrate by evidence the need which the emerging plan sought to meet. The inspector concluded at paragraph 14 that in the circumstances the emerging policy should be afforded little weight.

[32]Mr Pereira argued that the inspector fell into error in accepting this submission. The proper place for judging the merits of the policy was the adoption process and not the planning appeal. Had the effect of the inspector's decision been to usurp the function of the adoption process then I would agree with that submission. In my view, however, that is not the effect of the inspector's reasoning. The inspector was judging the weight to be attached to the emerging policy as a material consideration. He was not discounting the aim of the policy. He expressly found at paragraph 12 that he should not comment upon its merits. He was asking himself, in the context of this appeal, what weight he should attach to the existence of the emerging policy. Had the authority been in a position, by evidence, to demonstrate the urgency of the need to halt unfettered development, would an argument from the appellant that the evidence was immaterial legitimately have found favour with the inspector? I think not. In my judgment, the inspector was entitled to take the approach that he did. Where a policy is emerging, it seems to me that the decision-maker when performing his function under section 54A is entitled to examine the evidence of support of the assertion that the emerging policy should take precedence.

[33]The inspector proceeded to examine factors relevant to the claim that this proposal went to the heart of the plan and should be refused on the grounds of prematurity. He concluded at paragraphs 14 and 15 that this was in reality a reconversion and was not a new development in the sense that the national park was being deprived of land. It was an internal reconversion in the town of Tenby which would have no impact on what the inspector called the "street scene". It impacted on only a very small area. It had not been demonstrated that it would predetermine decisions about scale, location or phasing of other development in the south east coast community "which ought properly to be taken in the (emerging) UDP context".

[34]Mr Pereira submitted that the inspector irrationally or wrongly took the scale or type of development into account. He could not rationally have concluded that it would not predetermine matters the subject of the emerging UDP. Once it was accepted that the strategy of the emerging plan was to stop any unfettered development, then the only rational conclusion must be that the proposal was bound to undermine the emerging policy. There is an attractive simplicity to Mr Pereira's reasoning, but in my view it is too simple. Prematurity is not a trump card which always wins if you have chosen the suit. If Mr Pereira is right, the more controversial the emerging policy (for example, there will be no further development of any kind), the easier it is to establish the primacy of the prematurity argument. I do not consider the aim of Planning Policy Wales 3.5.2 to be the elevation of prematurity to a dominant consideration. It may be that it will be dominant, but that will depend both upon scale, impact and effect, as well as the bare question: does the proposal appear to undermine the strategy behind the emerging plan?

[35]The inspector was in my judgment entitled to conclude that given the nature of this particular proposal the factors influential in 3.5.2 had not been established. The inspector noted at paragraph 15 that the development would add two new units to the available land supply. Mr Pereira noted the appellant's acceptance at appeal that they would probably be sold to local residents. However, in the absence of evidence, the inspector felt unable to reach any conclusion how their existence would impact on "local need", the interest the emerging plan sought to protect.

[36]Mr Pereira argued that this was inadmissible reasoning. The very fact that the development was unfettered would undermine the strategy which was that no property should be developed without first being subjected to local needs, whatever they were. All that was sought was deferment until the need was reliably assessed. Mr Pereira submitted the inspector must have asked himself the wrong question, namely whether the strategy was required rather than whether the strategy was undermined. I do not consider the inspector fell into error. It is true that the creation of two flats, unfettered by the emerging plan, undermined the draconian objective of the plan, and the inspector said as much in his first sentence in paragraph 15. But in my view the inspector was not denying the existence of the strategy. He was returning to the weight to be attached to it in the particular circumstances of the case and in the absence of evidence of need. That in my view was a legitimate approach.

[37]I turn secondly to the issue of cumulative precedent effect. The argument for the authority is that it is self-evident any permission to build unfettered residential units will encourage others. The effect would be to undermine the strategy. Mr Pereira submits that the inspector simply did not deal with the effect which this successful appeal would have upon other applications. He submitted that all planning applications which breached the emerging policy are likely otherwise to be acceptable in planning terms. Should this application have been granted, all such applicants would be able to argue (as the inspector found)(1) that the proposed policy may not be adopted as drafted;

(2) that there was no up-to-date needs survey to support the assertion which the proposed policy was designed to meet;

(3) that the application would not predetermine decisions about scale, location or phasing of development;

(4) that GE7 carries greater weight than policy 47. It must follow, he submitted, that in every other application prematurity would not be a material consideration. The inspector's decision is thus a precedent.

[38]I accept that any future applicant will be able to argue delay until adoption, that the emerging plan is controversial and that GE7 carries greater weight than policy 47. However, the only constant is controversy, and even that feature may change as the plan nears adoption. The arguments which each side may deploy will depend upon the circumstances of each appeal. Obvious differences between this and other applications may include the size of the development, the site of the development, the number of units to be created, the stage the adoption process has reached, and the nature of the evidence available to the authority to establish the urgency of the situation. I do not accept that the conclusions to be reached by an inspector on another occasion, when weighing the material considerations in a different appeal either should be or will be the same. I agree with Mr Pereira that the inspector's conclusions and reasons are light on the impact of precedent, self-evident or otherwise. I suspect that this is largely a product of the limited explicit written submission directed to the issue. Nevertheless it seems to me inherent in the authority's case to the inspector (any individual permission was likely to have a precedent effect, given the object of the strategy) that a cumulative effect would undermine that strategy (see the authority's written submissions on appeal, paragraphs F1 and F2). The inspector did, however, deal with this submission in paragraph 14. He said:

"There are no convincing reasons to show that the limited re-development now proposed could successfully be exploited by others as a serious precedent."

[39]The inspector clearly had in mind the somewhat unusual nature of the application in the context of its planning history, together with his conclusions upon scale and impact. It seems to me that the inspector's conclusion does no more than establish on the facts of the case considerations which drove him to except this proposal from the refusal on the grounds of prematurity. For the reasons I have already identified, I do not consider that his decision had the effect of opening the floodgates and, in my view, the inspector was right so to conclude.

[40]The authority has failed to establish that the inspector's decision was reached irrationally, unreasonably or unlawfully and the challenge under section 288 is accordingly dismissed.

[41]I turn now to the issue of costs. I was reminded by Mr Pereira that where what was involved was a planning judgment based on the facts it is not open to an inspector to award costs. What is required is unreasonableness. The inspector's reasons are to be found at paragraphs 10-15 of his decision letter on costs. He correctly addressed his attention to the guidance offered by Welsh Office circular 23/93 and at paragraph 11 said this:

"Annexe 2 .... establishes the circumstances in which costs may be awarded. Paragraph 7 of Annex 3 warns that a local planning authority should not prevent, inhibit or delay development which could reasonably be permitted, in the light of the development plan, so far as is material to the application, and of any other material considerations. Paragraph 8 says that refusal reasons should be complete, specific and relevant to the application. In any appeal proceedings, the authority will be expected to produce evidence to substantiate each reason for refusal, by reference to the statutory development plan or by taking into account all of the other material considerations."

The inspector found that the authority acted unreasonably in taking the prematurity point in this case. They should have realised that it "flew in the face" of national planning guidance, which clearly states that policies specifically to meet local needs are acceptable only if they relate to affordable housing. There were no valid or justified material considerations to indicate that development plan GE7 should not be applied. They failed to demonstrate that the proposal would cause demonstrabl harm to interests of acknowledged importance. The authority acted unreasonably making the averment that the proposal would place pressure on greenfield sites elsewhere in the national park. This was merely restoration on a private dwelling previously used as a guest house.

[42]Mr Pereira submitted that the inspector erred in taking into account his view that emerging policy 47 flew in the face of national policy. The merits of policy 47 in the light of national policy was a matter to be decided through the local plan process. This consideration, he submitted, was wholly irrelevant to his costs decision since the issue at the appeal in relation to prematurity was not the merits of the policy but the effect on the emerging policy plan which allowing the appeal would have.

[43]The inspector's reasons might, I accept, have been more happily phrased, but in my view they were to the point. The inspector was in my judgment right to consider the radical departure from national planning guidance which the emerging plan represented. The authority should have realised, given the early stage of the adoption process so far reached, that it was not enough simply to bring a halt to development, however minor it might be and however particular might be the circumstances. If that was to happen, there then there was a burden on the authority to demonstrate the overriding interest which it sought to preserve until the conclusion of the adoption process. Instead, the authority said in effect, "We do not need to. It is our judgment that the need is so great that all development should be stopped unless the applicant is prepared to fetter his right of disposal. Since we have so decided, all development should cease on the ground of prematurity until our judgment is tested by public inquiry." In reaching this position, the authority put on one side the very issues of proportionality which it resolved on 17 April 2002 it should consider in each individual case. In assessing the merits of the prematurity argument, the authority in my view acted unreasonably. It failed to take account of considerations which were plainly material, let alone weigh them before reaching a decision. This, in my judgment, is the effect of the inspector's decision. It is a conclusion to which he was entitled to come.

[44]I accept Mr Pereira's further submission that, in identifying an absence of evidence to the effect that this proposal would place a corresponding demand on national park resources elsewhere, the inspector appears to have indulged in a speculative consideration on the effect of the development. He said at paragraph 15:

"Given its coastal location, lack of off-street parking and minimal external amenity space, it is much more likely to attract the retired elderly without dependent children who value easy access on foot to local facilities and services."

[45]In common with Mr Pereira, I do not immediately follow the relevance of this passage. The reason being identified by the inspector was the authority's unreasonable failure before refusal to demonstrate its assertion, by evidence, of the strain permission would place upon the national park's resources to satisfy local need. In my judgment the inspector's quoted words were surplusage. It may be he was wondering to whom these residential units would be of any interest. Perhaps they would be of no interest to persons with local or essential need. I do not consider this speculation, if that is what it was, undermines the inspector's reasons for awarding costs. It was in my judgment open to him to find as he did, and I do not consider that this order should be disturbed. Accordingly the claim for judicial review of his costs order is dismissed.

MR JUSTICE PITCHFORD: Miss Ashford.

[47]MISS ASHFORD: My Lord, in the circumstances of the judgment you have just given, I would ask that the claimant bear the defendant's costs in the amount that has been agreed between the parties on the schedules.

MR JUSTICE PITCHFORD: There is agreement between you?

[49]MISS ASHFORD: There is agreement that if the defendants were to be successful, the claimant would pay -- bear with me a moment -- the total of £8,149.50.

MR JUSTICE PITCHFORD: That is right, is it, Miss Walsh?

[51]MISS WALSH: That is correct, yes, my Lord. Those are the defendant's costs as I have them on the schedule that I have been provided with and agreed.

[52]MR JUSTICE PITCHFORD: I shall make an order that the claimant pay the defendant's costs, which I assess summarily and by agreement in the sum of £8,149.50. Thank you both for your attendance.