Chelmsford Car & Commercial Ltd, R (on the application of) v Chelmsford Borough Council [2005] EWHC 1705 (Admin)

Case No CO/2274/2005[2005] EWHC 1705 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 6th July 2005
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF CHELMSFORD CAR AND COMMERCIAL LIMITED)Claimant-v-
Between
CHELMSFORD BOROUGH COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR P CLARKSON QC (instructed by Holmes and Hills, Essex CM7 9AJ) appeared for CLAIMANTMR R GREEN (instructed by Legal Department for Chelmsford Borough Council) appeared on behalf of the DEFENDANT
J U D G M E N T
[1]MR JUSTICE SULLIVAN: This is an application for judicial review of a planning permission, dated 7th February 2005, granted by the defendant to the interested party for the erection of 12 dwellings on land to the south-west of Old Church Road, East Hanningfield, Essex (the CHS site). The CHS site is to the south-west of the village, outside the defined settlement boundary of East Hanningfield, and in the rural area beyond the Green Belt to which Policy C5 in the Essex and Southend-on-Sea Replacement Structure Plan applies. Policy C5 states that:
"Within the rural areas outside the Metropolitan Green Belt the countryside will be protected for its own sake, particularly for its landscapes, natural resources and areas of ecological, historic, archaeological, agricultural and recreational value. This will be achieved by the restriction of new uses to those appropriate to a rural area, and the strict control of new building in the countryside outside existing settlements to that required to support agriculture, forestry or other rural uses or development in accordance with Policies H5, RE2 and RE3. Development should be well related to existing patterns of development and of a scale, siting and design sympathetic to the rural landscape and character."
Policy H5 advises that adopted local plans should include policies to enable the provision of small scale affordable housing to meet identified local needs on land within, or adjacent to, existing settlements as an exception to normal planning policies.[2]The Chelmsford Borough Local Plan includes such a Policy H03. The explanatory text refers to Government Guidance in PPG3, which:
"explains that in many rural areas there are particular difficulties in securing an adequate supply of affordable housing for local needs. The essence of the guidance is that in exceptional circumstances planning permission might be granted for affordable housing for local needs within or adjoining villages on-sites that would normally be subject to policies of restraint."
Paragraphs 2.43 and 2.44 in the Local Plan describe the particular circumstances within the defendant's area. Paragraph 2.45 continues:
"For these reasons the strategy of the Plan is to provide for local needs for social housing on sites allocated for housing in the Plan and on windfall sites. In the rural areas any further housing releases outside the Defined Settlement boundaries would need exceptional justification, in accordance with Policy HO3 below. The question as to whether exceptional circumstances exist must be left for determination at the time a specific proposal is considered. In the Green Belt no housing releases will be permitted other than in very special circumstances. It is likely that the number of houses made available under the Policy will be very limited. The proponents of the scheme (normally a housing association or village trust) will need to carry out detailed surveys to prove that a local need for this type of housing exists that cannot be met in any other way. Parish Councils can make a major contribution in respect of such schemes and surveys. The proponents will need to enter into an obligation/agreement within the Borough Council under Planning (and if necessary other) legislation to ensure that all the housing is available in perpetuity at low cost and solely for local needs."
Policy HO3 is in these terms:
"In the rural areas the council may grant permission for social housing on small sites beyond the defined settlement boundary of villages in exceptional circumstances, where:- (i) It can be demonstrated to the satisfaction of the local planning authority that there is a proven local need for the number and type of dwellings proposed, which cannot be met in any other way; (ii)Appropriate agreements are entered into with the local planning authority to ensure that all the dwellings will remain available as social housing, and exclusively for local needs, in perpetuity and that the necessary management of the scheme can be permanently secured. Details will be needed of the legal mechanism proposed to achieve these requirements; (iii)The site is immediately adjacent to the boundary of the defined settlement and is not subject to any over-riding environmental, infrastructure or other planning constraints; (iv)The proposal is in accordance with other planning policies, notwithstanding its location beyond the defined settlement boundary. In dealing with such proposals, account will be taken of the accessibility of the site to local services, in particular a primary school, shopping and public transport facilities. In the Green Belt, permission will not be given except in very special circumstances."
[3]The interested party’s application for planning permission to erect 12 affordable dwellings on the CHS site was received by the defendant on 30th June 2004. The application was put forward on the basis that it would meet a proven local need for 12 affordable dwellings in East Hanningfield in accordance with Policy HO3. The claimant's application for planning permission to erect 12 affordable dwellings on a site on the opposite side of Old Church Road (the claimant's site) was received by the defendant on 21st July 2004.[4]Both applications were considered at the same meeting of the defendant's planning committee on 14th September 2004. The Committee resolved to grant planning permission for the CHS application, subject to a planning agreement being entered into, and to refuse the claimant's application. The claimant has appealed against that refusal and a public inquiry has been arranged for 26th July.[5]It is common ground that there was a proven local need for only 12 affordable dwellings at East Hanningfield. The claimants contended in a written statement in support of their own application, and in their written objections to the CHS application, that their site complied with criterion (iii) in Policy HO3 because it was immediately adjacent to the boundary of the defined settlement, was well related to the existing built form of the village and would have limited impact on the rural landscape surrounding the village. By way of contrast they contended that the CHS site did not comply with criterion (iii) because it was not immediately adjacent to the defined settlement boundary, that it had a tenuous and superficial relationship to the existing built form of the village and would have a much greater landscape impact on the rural landscape.[6]The claimant contended that in determining the two applications the defendant should carry out a comparative assessment of the planning merits of the two rival sites. The defendant took the view that a comparative assessment was not required and adhered to that view following the claimant's pre-action protocol letter, dated 1st December 2004. In a letter dated 18th January 2005 the defendant referred to a number of authorities (in addition to the authorities that had been referred to in the claimant's pre-action protocol letter) and said:
"Having regard to the principles established in these cases and having taken Counsel's advice, the Council remains entitled to conclude that a comparative assessment was not required."
[7]The defendant accepts that it was under a statutory obligation to consider not merely the Development Plan, but also any other material considerations (see section 70 of the Town and Country Planning Act 1990 (the Act)). On behalf of the defendant Mr Green submitted that it was for the defendant to decide whether the existence of an alternative site was a material consideration. A decision not to take account of an alternative site (or to conduct a comparative exercise in respect of that site) could be challenged only on Wednesbury grounds: see, for example, Laing Homes Ltd v the Secretary of State for Transport, Local Government and the Regions [2003] 1 P&CR 18, paragraph 52, per Richards J.[8]In that case Richards J helpfully reviewed a number of the earlier authorities. Before me both Mr Clarkson QC, on behalf of the claimant, and Mr Green referred to those authorities and to subsequent authorities. However, it is necessary to approach the authorities with a degree of caution since they are all fact sensitive. For example, in the Laing case the Secretary of State had not even been asked to carry out a comparative assessment between the two sites in question, both of which had been allocated for residential development in the local plan.[9]It may also be relevant to distinguish between different categories of case, for example, between those cases where there are two or more rival planning applications, which have to be determined (as was the case in Secretary of State v Edwards and Others [1994] 1 PLR 62, see per Roch LJ at page 72); those cases where an alternative site is suggested by an objector to a planning application, but where there is no application for planning permission in respect of that site (as in the case of R v (on the application of Scott and Another) v North Warwickshire Borough Council [2001] 2 PLR 59, where the application being determined was in an area where the Development Plan said that development was acceptable in principle and the alternative site, suggested by objectors, had previously been considered and rejected because of objections that had been raised by local residents); and those cases where no specific alternative site is identified and it is merely argued that the decision-taker should have considered the possibility that there might be such a site which might be able to better meet the identified need (as was the case in Greater London Council v the Secretary of State and the London Documents Development Corporation [1986] JPL 193.)[10]In Trust House Forte Hotels Limited v the Secretary of State for the Environment [1986] 53 P&CR 293, the issue was whether the local planning authority could lawfully object to development in the Green Belt upon the basis that the identified need could be met on an alternative site without identifying any particular alternative site (see Simon Brown J, as he then was, at page 301.)[11]In Phillips v First Secretary of State [2003] EWHC 2415 (Admin); 2004 JPL 613, Richards J accepted:
"The general proposition that consideration of alternative sites is relevant to a planning application only in exceptional circumstances ... That alternatives will in general be immaterial or of negligible weight is supported further by the decision of the Court of Appeal in R (Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346, in which the approach of Laws LJ in R (Scott Jones) v North Warwickshire BC was followed."
That general proposition has to be seen in context. Richards J was not considering a proposal by another applicant for planning permission for a radio mast on a rival site upon the basis that only one of the two masts could be granted planning permission. He was responding to a submission that the applicant for planning permission should have explored the possibility of alternative sites more thoroughly and had failed to do so. Against that background Richards J made it clear that: "The exceptions to the general proposition are not, however, limited to the circumstances identified by Laws J in Scott Jones. He was at pains to observe that he was not laying down a fixed rule. It seems to me that a further situation where, as a matter of principle, consideration of alternative sites can also be relevant is where the development plan or policy guidance makes it relevant -- a situation which was not before the court on the facts of Scott Jones ..." (see paragraph 38).[12]Richards J concluded that PPG8 was of particular importance in that case and made consideration of alternatives an integral part of the process of assessing applications for approval of the siting of telecommunications structures.[13]In the present case the proven need was very local: affordable housing for a particular village, East Hanningfield. It was common ground that there was a need for only 12 affordable dwellings in the village. Two sites had been put forward as capable of meeting that need on opposite sides of Old Church Road. Both of the sites were the subject of planning applications and both of the applications were to be considered at the same meeting.[14]Common sense would suggest that in these particular circumstances a comparison between the merits of the two sites would inevitably be a material consideration. Indeed, it would appear from the planning officers' reports in respect of the two applications, that the officers did think that at least some degree of comparison between the two applications was relevant in terms of criterion (ii) in Policy HO3. It is helpful to set out the relevant passages in the reports dealing with the two applications.[15]In the case of the CHS application the report stated, in paragraph 5.1, that the site lay beyond the defined settlement of East Hanningfield in the Rural Area beyond the Green Belt wherein Policy C5 of the Structure Plan applied. It then said that it was appropriate to assess the application with regard to the four criteria in Policy HO3. The report considered those four criteria: Proven Local Need, Legal Agreement, Adjacency of site to Defined Settlement and Other Planning Policies.[16]In respect of the third of those issues, paragraph 5.5 of the report said:
"The defined settlement boundary lies approximately 30 metres to the north east of the application site boundary. The gardens of the two properties that are closest to the application site lie beyond the defined settlement boundary and extend to within approx 5m of the application site. The proposed development would however read as an extension to the built form of the village westwards along Old Church Road and given its close relationship to the defined settlement boundary is considered to be acceptable in the context of this policy criteria."
Under the heading "Other Material Considerations" paragraph 7.1 said:
"A similar planning application [the claimant's application] has been submitted on land on the opposite side of Old Church Road to the Colne Housing Society’s application. This application is also for 12 dwellings for local affordable housing needs and relies largely on the same supporting information… Each application falls to be considered on its merits against the relevant policies and government advice."
The report contained a summary of objections from neighbours, which included the following points:
"The application does not demonstrate that other sites in the village have been considered. For example land within the Cobb complex may become available in the near future." and: "
Development of this site would result in the loss of the site's open character and would be detrimental to the rural character of the area and contrary to ESRSP Policy C5." The response to the former point was:
"The Parish Council has been closely involved in the process of finding a site and as a body local to the village should be aware of any alternative sites where a scheme could be delivered. There is no statutory requirement to consider alternative sites. The application site is close to the Defined Settlement Boundary."
The response to the latter point was: "It is acknowledged that the development would result in the loss of the open character of part of the field. This is only justified, in this case, by the provision of the local needs housing that the development would bring."(my emphasis)[17]In the report into the defendant's application the same point was made in respect of the applicability of Policy C5 and it was also thought appropriate to assess the application against the four criteria in Policy HO3. Under the first criterion "Proven Local Need", paragraph 5.3 of the report says this:
"The data upon which need is sought to be established is identical to that provided in the Colne Housing Society’s application… (see previous item on this Agenda). As such the application could appear to meet local need, subject to its deliverability. However as set out in the previous report the level of need can be established at 12 dwellings. The applicants have not shown how the scheme can be delivered and there is an alternative scheme [the CHS scheme] which can fully accord with the policy. There is therefore no 'needs' case for this proposal."(my emphasis) Dealing with the second criterion "
Legal agreement", paragraph 5.4 of the report said:
"The applicant states that the scheme is 'financially viable and is capable of proceeding immediately following conclusion of a Section 106 Agreement and the grant of planning permission'. It is however not clear how the applicant has reached this conclusion. The applicant has no identified social landlord partner. Colne Housing Society have stated that they have not conducted any negotiations with the owner of this land or the applicant and have no intention of switching sites. The applicant makes no reference to the reliance on, or public subsidy support for the application. If public subsidy is sought it is understood that bids would not be considered by the Housing Corporation until May 2006 at the earliest. The Housing Corporations 2004 06 investment programme was determined and then announced in March 2004. Colne Housing Society has been awarded funding from the Housing Corporation for development of their site and delivery of their scheme in 2004 - 2005. This has been awarded on the basis of detailed negotations/preparatory work with the landowner and consultation with the Parish and Borough Councils. Therefore Colne Housing Society's application provides satisfactory guarantees regarding the affordability of the scheme on the given site and their ability to proceed soon after the completion of the Section 106 Agreement and any grant of planning permission. The same cannot be said of the application subject of this report. There are therefore serious questions regarding its deliverability in general and in particular the timescale of that delivery."
[18]When dealing with the third criterion "Adjacency to the Defined Settlement", paragraphs 5.5 and 5.6 of the report said this:
"5.5 The site abuts the defined settlement boundary and this criterion would be met. 5.6 The applicant considers that the application site enjoys a closer relationship with the village end and is not as exposed as the Colne Housing Site. As such he feels that development of the site would be less virtually intrusive than development of the Colne Site. This argument is noted. It is true however, that development of either site would result in encroachment into the countryside and would only be acceptable on the basis of special justification. The recommendation in each of these cases is based on weighing a number of relevant factors that go beyond solely consideration of which site would provide the best relationship with the village edge."
[19]Criterion (iv) was then addressed and it was stated that the claimant's proposal could provide a satisfactory new village edge. In conclusion paragraph 7.1 said:
"There are significant questions about the deliverability of this scheme, to provide affordable housing for rent for local needs within a reasonable timescale. The need for the proposal has also not been established in that the identified need can be met in a scheme which fully affords with policy. As such it would not meet the requirements of criteria (ii) of CBLP Policy HO3 and would be contrary to [Structure Plan] Policy C2." (my emphasis) It would appear that the reference to Policy C2 should be a reference to Policy C5 because in response to letters of objection, one of which had said that development of this site would be contrary to Structure Plan Policy C5, detrimental to the rural character of the area and the open aspect of the site, the report commented that this was "
Noted. See reasons for refusal."[20]For the avoidance of doubt, I should mention that the discussion in relation to criterion (ii) preceded an exchange of correspondence in which the defendant had asked for further information in respect of that aspect of the application from the claimant, and the claimant had supplied further information which was dealt with in an addendum report. In that addendum report the defendant referred to letters that had been received from the claimant which included the proposition that the claimant's site:
"is superior in planning terms, including matters relating to proximity of village edge, landscape impact and permeability. The reports do not adequately distinguish between the planning merits of each site."
The addendum report commented on the information about the proposed funding of the claimant's scheme, and having done so further commented that:
"The Colne scheme is acceptable in all planning respects and provides the assurances that RSL involvement [the Registered Social Landlord] brings."
[21]In response to the claimant's further representations that their site was superior in planning terms, the addendum report said that there was no statutory requirement for other sites to be considered and:
"Such exception sites are not a form of housing allocation. The basis of the policy is one of permitting very limited exceptions to established policies of restraint and not a new form of development plan allocation. There is therefore no 'competing sites' issue as each site falls to be considered on its planning merits."
[22]Despite that observation it can be seen that when considering criteria (i) and (ii) in Policy HO3, the officers were happy to rely on the CHS application to defeat the need argument (criterion (i)) in respect of the claimant's application.[23]In these circumstances it was inconsistent and unrealistic to contend that there was no "competing sites" issue. Both sites were competing, on opposite sides of the road for the same very limited, and highly localised, need." So far as criterion (ii) is concerned, it was plainly thought relevant to compare, in terms adverse to the claimant, the respective cases of CHS and the claimant on issues such as affordability (see paragraphs 5.3 and 5.4 of the report in respect of the claimant's application). However, there appears to have been a marked reluctance to engage in a similar comparative exercise in respect of the adjacency criterion (criterion (iii) in Policy HO3) and in respect of the more general contention that the claimant's site would be better related to the existing pattern of development in the settlement and would have less of an impact on the rural landscape: factors which are specifically mentioned in Policy C5, which it will be remembered was included as one of the reasons for refusing planning permission in the claimant's case.[24]The proposition that the decision in each of the cases would not depend simply upon which site provided the best relationship with the village edge, but would be:
"based on weighing a number of relevant factors that go beyond solely consideration of which site would provide the best relationship with the village edge"
Is undoubtedly correct. The claimant does not suggest that the adjacency criterion and the sites' relationship with the village edge were the only factors to be weighed in the balance. The claimant contends that if the proper course was to weigh "a number of relevant factors", it was necessary to carry out a comparative exercise not merely in respect of those factors which might tend to favour the CHL application, but also in respect of those factors which might tend to favour the claimant's application. In short, the complaint is that the defendant chose to carry out a comparison between the two applications in respect of those matters which showed the CHS scheme to good advantage, but then chose to duck the issue when a comparison in respect of other matters might have showed the claimant's site to a better advantage.[25]While I accept Mr Green's submission that it is initially for the local planning authority to decide what factors are, and what factors are not, material, it is plain, from the reports in respect of these two applications, that the officers did recognise that a comparison of the merits of the two applications was relevant at least in certain respects. The question is, therefore, whether it was either reasonable or fair to conclude that the comparative exercise should not extend to the planning factors identified in the representations from the claimant, so that a properly balanced decision could be taken.[26]One has to bear in mind that this is a case where the Development Plan does not permit a number of permissions to be granted for a particular type of development. This is a case where Development Plan policy requires an exception to be justified. If there is a need to make provision for social housing in respect of a particular village and one has two proposals, both of which are advanced as being capable of meeting that particular local need, side by side with each other, the starting point is that both of the proposals are in principle contrary to Policy C5. It is only if due proposal can comply with Policy HO3 that it would also be able to comply with the guidance in Policy H5 and hence fall within one of the exceptions in Policy C5. All will hinge on the applicant being able to make out an exceptional case: that the need cannot be met in any other way.[27]Mr Green submitted that the defendant did not engage in a comparative exercise because it considered that the CHS application complied with Policy HO3 and that the claimant's application did not. But in making that submission the defendant is pulling itself up by its own boot straps. The CHS application complied with Policy HO3 if the exception could be justified. Criterion (i) makes it plain that it has to be demonstrated that the proven local need (about which there is no issue in the case) cannot be met in any other way.[28]I accept the submission that the principal meaning of those words is that the local need for the number and type of dwellings required cannot be met in any way other than permitting a small housing site beyond the defined settlement boundary. However, that does not mean that in circumstances where there are two planning applications, both of them for small sites beyond the defined settlement boundary, that a local planning authority can reasonably treat as immaterial the fact that one of those sites is immediately adjacent to the defined settlement boundary in accordance with criterion (iii) and one is not.[29]I accept that adjacency is not the be all and end all, but one is repeatedly urged to read planning policies in a common sense way and as a whole. The criteria in policy HO3 are cumulative. In order to assess the degree of compliance with Policy HO3 it is therefore relevant to consider the extent of compliance not merely with criterion (ii), but also the extent of compliance with criterion (iii). I do not suggest that this will simply be a mechanical exercise of getting out a scale and ascertaining which site is further from the defined settlement boundary.[30]The background to Policy HO3 is Policy C5 which makes it plain that matters such as a site's relationship to the existing pattern of settlement, and the impact of siting on the rural landscape, are matters which have to be taken into account. Given the existence of Policy C5 it is difficult to see how a proposition that one site, on the opposite side of the road to the application site, is better related to the existing settlement pattern and would have less impact on the rural landscape, could be regarded as immaterial in determining the extent of compliance with Policy H03 (Criterion (iv) refers to compliance with other planning policies), and hence whether the local need can be met in any other way.[31]This is a case where it is acknowledged that housing in the rural area would, in principle, be harmful, but the harm is justified by the provision of local needs housing. In such a policy context, an alternative application to meet that very need, just across the road, is prima facie relevant. Whether the alternative site would be better related to the existing village and/or have less landscape impact are no less relevant than the respective strengths and weaknesses of the two applications under the heading of "Affordability".[32]In summary this is a case where the defendant was trying to have its cake and eat it. It was happy to make comparisons between the two applications when those comparisons showed the CHS application in a good light (under criterion (11)) and to use the CHS application to defeat the applicant's need case under criterion (i), but was not prepared to grapple with the claimant's proposition that if one also looked at criteria (iii) and (iv) its application came out in a more advantageous light on balance.[33]For these reasons the defendant's inconsistent approach was unreasonable and, albeit unintentionally, unfair. It is unnecessary to consider the remaining grounds of challenge, though for completeness I should mention that due to an administrative oversight the planning permission did not include the correct statement of summary reasons for granting permission. It is unnecessary to rehearse the reasons why the defendant accepted that the permission would have to be quashed, in any event, on this ground.[34]I should make it clear that I have had regard to the points made in the acknowledgment of service, filed by CHS, which set out the practical difficulties that will be caused by quashing its planning permission. While I have considerable sympathy for CHS, it has to be said that the claimant has repeatedly asked the defendant to carry out a comparative exercise that was not confined simply to matters of affordability, but extended to the planning factors such as compliance with criterion (iii) in Policy HO3, and matters such as impact on the landscape and relationship to the settlement pattern, and the defendant has repeatedly declined to do so. CHS has therefore proceeded in the knowledge of this dispute.[35]I should also make it plain, in view of the imminence of the inquiry into the claimant's appeal, that it is not my role to decide whether the claimant's site is indeed better related to East Henningfield, or whether it would have more or less of an impact upon the landscape. In this decision I am merely concluding that whatever may be said in the authorities about the lack of relevance of "alternative sites" generally, in the particular circumstances of this case where there were two rival sites for the same local need it was neither reasonable nor fair to set on one side as immaterial the claimant's contention that its site better complied with Policy HO3 in the light of its relationship with the defined settlement boundary and with existing settlement pattern.[36]For this reason, this application succeeds.[37]MR CLARKSON QC: Consequent upon that we seek a quashing of the permission.

MR JUSTICE SULLIVAN: Yes.

[39]MR CLARKSON QC: My Lord, may I go into another area that is consequent upon that? Now that is quashed, if one winds the clock back to September 2004 two applications were put forward. The court has found the approach was unreasonable. The consequence of the unreasonable approach was a refusal of the claimant's application. All the claimant can do is appeal. If the claimant had come here they would have been told to go away because there is an alternative process. Meanwhile they challenged the grant of the CHS permission. The claimant is out there with its appeal. CHS meanwhile they did not own the land and they were warned of everything. They bought the land subsequent to 13th January 2005, having been warned by my client's solicitors, at page 124. So their position was clarified. What we have now, my Lord, is the curious position of the appeal coming forward on 26th July. The Inspector will adjudicate upon the claimant's appeal. Argued at that appeal presumably by the Council will be that there is an alternative site.[40]The Inspector is ideally qualified, or in an ideal position, to adjudicate upon that. What I seek is that there be a stay on any further examination, my Lord, of the CHS application with a view to grant, pending the Inspector's decision on the claimant's appeal, subsequent to 26th July 2005.[41]My Lord, I raise that because in my submission that is the only fair approach given that the unreasonable conduct in September 2004 has forced the claimants to end up with this appeal. Meanwhile the opportunity, as always, with the counsel to take a different course, which again would be unreasonable, we say, in the circumstances because now the Inspector is seized of the claimant's appeal.[42]My Lord, I raise that and of course Mr Green will respond, but while I am on my feet there is an agreed position as to costs. We do seek an order for the claimant's costs in the sum of £19,000 plus VAT, where payable. I think that is an agreed position.

MR JUSTICE SULLIVAN: Yes, Mr Green?

[44]MR GREEN: Yes, the costs are agreed on summary in that basis. So far as the prohibitory order or injunction which is now sought, the planning permission having been quashed, there remains an undetermined application and the claimant seeks an injunction from preventing the local authority from carrying out the statutory functions and (inaudible) the applications before it. In my submission there is no basis for such an order. If the local authority decides the matter, predetermines the matter before a decision is reached in the planning inquiry, then that is the result of the system that we have. If it reaches a lawful decision, all well and good. If it reaches an unlawful decision, that can be challenged.[45]MR JUSTICE SULLIVAN: Yes, thank you very much. I do not need to trouble you further on that.[46]MR CLARKSON QC: There is one other matter I raise, primarily to protect the local authority's position. Obviously very careful regard will be had to your Lordship's judgment in due course. I do seek permission to appeal. This is an area complete with various authorities, none perhaps on these particular facts. Nonetheless I would submit that the local authority having decided in September that the claimant's application was unacceptable in those terms, there was no obligation thereafter to carry out a comparative assessment.

MR JUSTICE SULLIVAN: Thank you very much.

[48]MR CLARKSON QC: You have given an indication on my first submission. Can I make plain, with that in mind, how the claimant's propose to approach it? It is clear for the Council that it is the only opportunity we have. Any new adjudication upon the CHS application will, we say, have to receive further submissions from at least the claimants. The claimants propose further to submit, and will do so, and there is a number of new issues that have to be considered, not least, for example, with one area as to whether or not the need is in fact higher now for the number of dwellings. That is an area that is live and the Council know about it, but it is live in the Inspector's examination but also must be live, therefore, in any further adjudication upon the CHS application. I make it absolutely plain that the claimants will submit and they must (I say this to the Council through you) have time so they can submit. They propose so to do.[49]MR JUSTICE SULLIVAN: Mr Clarkson, you just used the opportunity to put down a marker, which I do not mind. I am sure Mr Green, and those behind him, will appreciate that in re-determining the application obviously any planning authority (I do not say specifically this one) will have to take account of circumstances as they now are, as opposed to what they were in September 2004. So if there is further material about whether the need has gone up or down, then obviously it will be up to the Council whether or not they ought to have regard to that. They would know from these proceedings that if you do not have regard to matters for material consideration then you are vulnerable to judicial review. We do not need to say anything more about that.[50]The formal order of the court is planning permission is quashed. The claimant is to pay the defendant's costs summarily assessed in the sum of £19,000 plus VAT where payable. I do not think it appropriate to grant any stay on the council's further re-examination of the CHS application. It is a matter for the Council to decide whether it thinks it is appropriate or not to do that, bearing in mind the imminence of the public inquiry and bearing in mind the obligation to have regard to the circumstances, as they now exist, as opposed to circumstances that did exist some months ago. That is a matter for the Council to decide.[51]So far as the application for permission to appeal is concerned, I refuse permission to appeal. It seems to me that this is not a case that raises any issue of principle. It turns very much upon its own particular, and rather peculiar, facts. Thank you both very much.

Cited in 3 later judgments