Lawrence Sheriff School, Trustees of & Anor v First Secretary of State [2005] EWHC 3450 (Admin)

Case No CO/4413/2005

[2005] EWHC 3450 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Wednesday, 14th December 2005

Strand

London WC2

B E F O R E:

MR JUSTICE COLLINS

Between

THE TRUSTEES OF THE LAWRENCE SHERIFF SCHOOL AND PERSIMMON HOMES MIDLANDS LIMITEDClaimant

-v-

Between

THE FIRST SECRETARY OF STATEDefendant

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 A BOOTH (instructed by DLA Piper Rudnick Gray Cary UK LLP, Birmingham) appeared for CLAIMANTS.

MISS N LIEVEN (instructed by the Treasury Solicitor) appeared for DEFENDANT.

J U D G M E N T

[1]MR JUSTICE COLLINS: This is an appeal pursuant to section 288 of the Town and Country Planning Act 1990 against the refusal by the respondent of the applicant's application for planning permission. The development, which was the subject of the application, had been agreed by the local planning authority, but the Secretary of State had called it in for determination by him pursuant to section 77 of the 1990 Act. An inquiry was held before an inspector on 2nd February 2005. She issued a report recommending that the application be refused. The respondent, in a decision of 20th May 2005, accepted her recommendation and refused planning permission.

[2]The inquiry before the inspector concerned two similar applications, each of which raised points which could conveniently be dealt with together in the interests of saving time and cost. No point has been or could be taken to object to that course, so I need not consider it further.

[3]The application was for a housing development on open space belonging to the appellant school, which is at present used as a school sports ground. The facilities there are inadequate, so much so that an Ofsted report in 1999 made adverse comments about them. Those comments were being reiterated in the course of an inspection which was being carried out at the time the inquiry was being held in January of this year.

[4]The school had explored all alternative methods of financing the necessary improvements, without success. So it was that they reached agreement with the second appellants, Persimmon Homes, that they would release part of the site for development of 77 dwellings, and so would be able to make the necessary improvements to the sports facilities. Those would not be limited to use by the school, although it would have priority at certain times, but would be available for use by the public. Discussions led in due course to the acceptance of the scheme which was before the inspector by the Council. The Council was accordingly minded to grant planning permission. The Secretary of State decided to call in the proposals on the ground that "the proposed development raises issues of more than local importance that may conflict with national policies to promote sustainable patterns of development." An obvious concern was that the development was on a greenfield site.

[5]The appellants raised five grounds of appeal to counter the adverse findings by the inspector which were accepted by the Secretary of State. I can consider the first two together, since both assert that the inspector was wrong to conclude that there was a lack of conformity with a particular policy of the Local Plan and that in reaching her conclusion the inspector acted unfairly, in that she failed to give the appellants any notice that she was concerned that there might be such non-conformity, when the witnesses before her had accepted that the proposed development did conform.

[6]The plan in question is the Rugby Local Plan. The policy is R/RL 3 which deals with school playing fields. It provides:

"The development of school sports and playing areas will not be permitted unless it is for the school's own use or all the following criteria are met. (1) The site is within the urban area or village boundary as shown on the Proposals Map. (2) The playing fields are not covered by Policies R/RL2 (Protected Open Space), R/RL9 (Amenity Corridors) or R/E11 (Areas of Restraint). (3) There is no long term need in the locality for the current provision of playing fields for educational purposes. (4) Any community use of the playing fields is retained or provided for elsewhere before the development commences in a location agreed by the Borough Council. (5) Sports and Recreational Facilities can best be retained and enhanced through limited development. (6) There is adequate open space in the locality based on the standards in Policy R/RL1 and R/RL6. (7) Compliance with the general standards of development in Policy R/G1 and any other relevant local plan policy."

It is not in issue that (1) to (4) were complied with. The question arose in relation to (5) and (6).

[7]It is useful to read also the note to the policy, which reads as follows:

"School playing fields are significant for their recreational and amenity value and in the urban area for their contribution to green space. The Government has recognised this in PPG17 Sport and Recreation. Changes in school rolls and restructuring may lead to playing fields, hard play areas and areas occupied by some school buildings (eg temporary classrooms) becoming surplus to school requirements. Provided this situation is likely to be permanent, limited development may be possible if the conditions listed above are met, and in particular, if development is required for the school's own use. These are designed to ensure open space is not lost in areas where it is deficient or limited development may lead to improved sports or recreation facilities."

I should note policy R/RL 6, which is referred to in No 6 under R/RL 3. This provides:

"When considering development proposals for existing areas of open space, including school playing fields, and the layout of new areas of open space in association with new housing development the borough council will have regard to the following standards for accessibility to different types of open space: Housing to be within: 200 metres of an equipped play area of at least 300 squares metres; 400 metres of a junior equipped play area of at least 3000 square metres; 400 metres of a local park of at least 2 hectares."

The appellants complain that in relation to R/RL 3(5) their witness stated her view that the proper interpretation of the word "limited" was that it meant "limited to such development that was necessary to finance the sports and recreational facilities." Thus it did not extend to the scale of the development in question.

[8]The inspector's view is set out in paragraph 4.77 of her report, where she said this:

"The Policy recognizes that limited development may be the means for retaining and enhancing sports and recreational facilities. The proposal would involve the loss of 22% of the area of Hart Field and the development of 77 dwellings with associated infrastructure. I do not consider that within the local context it would amount to 'limited development' in view of the area of land released and the scale of the housing provision. In this respect I note that the proposal would be a large housing development in the terms of the Local Plan."

A little later in 4.79 she said, having discussed the problem of funding and the inability of the school to raise funds in ways other than those covered by the proposals in question:

"Reasons for failure in securing funds have included the scale of the proposed improvement, organisations' lack of finance and competition from other schemes. With these factors in mind, my conclusion is that the current ambitious proposal is unlikely to gain public or private funding unless there is a developer partner."

Before going further, I should consider the obligations of an inspector in notifying the parties of points which are troubling him or her so as to comply with the requirement to act fairly. The principle is not in doubt. In Fairmount Investments v Secretary of State for the Environment

[1976] 1 WLR 1255

, the inspector had reached a conclusion as to the inadequacy of the foundations of a building in a compulsory purchase appeal at a site visit, and without informing the parties of what he had seen and the effect that that had had on him. They had no opportunity to deal with the point. In that context, Lord Russell of Killowen said at page 1265H of the report:

"But in this case I am unable, consonant with the essential principles of fairness in a dispute, to uphold this compulsory purchase order. All cases in which principles of natural justice are invoked must depend on the particular circumstances of the case. I am unable, my Lords, in the instant case, to generalise. I can only say that in my opinion, in the circumstances I have outlined, Fairmount has not had -- in a phrase whose derivation neither I nor your Lordships could trace -- a fair crack of the whip. A passage at p. 682 of Rex v Paddington and St Marylebone Rent Tribunal, Ex parte Bell, London & Provincial Properties Ltd [1949] 1 KB 666 on being taken by surprise is of relevance here."

In addition, I was taken to observations of Sir Christopher Staughton in the Court of Appeal in Warnes & Overy Ltd v Secretary of State for the Environment (unreported), decided on 10th July 1998, in which Sir Christopher said this:

"Mr Payton has said that his case is based primarily on breach of natural justice. It seems to me that the rules of natural justice are wholly or mainly procedural. There is a rule that nobody should be judged in his own cause -- nemo judex in rem suam. One can widen that a bit and say that a judge must be independent and impartial. There is another rule that one should hear the other side -- audi alteram partem. In the normal way one does not just listen to one side but to both. There is also a rule that one is entitled to know what one's opponent's case is. As was pointed out in the Franks Report, referred to in the case of Fairmount, the right to be heard is not of much use unless one knows what one is to be heard about, what the other side's case is."

[9]In a call in such as this, there is no opponent. The parties will know the matters which concern the Secretary of State and, indeed, in this case they were identified and are set out at the outset of the inspector's report. They include the extent to which the proposals were in accordance with the policies and proposals of the Warwickshire Structure Plan and the Rugby Local Plan; the extent to which the housing development proposed accorded with government policy advice in PPG3 Housing, and in particular whether it conflicted with the sequential approach; the suitability in the light of the criteria set out at paragraph 31 of PPG3; whether the proposal conflicted with the policies on delivering affordable housing, and, in addition, the extent to which the proposals were consistent with national planning policies in PPG 17, planning for open space, sport and recreation and, in particular, the question of need; whether the new facilities would be equivalent to those that they replaced; whether they satisfied various criteria; whether the benefits being offered to the community by the proposed development outweighed the loss of open space and, finally, any other issues which the inspector considered relevant to the determination of the application, including emerging national planning policies, such as those in the government draft planning policy statements. Importantly, in the context of this case, whether the proposals accorded with the plans and specifically whether there was a conflict with the policies on delivering affordable housing were clearly matters in issue.

[10]The concerns extended over a wide area. Accordingly, the parties should have appreciated that they could not assume that any agreement between them would be accepted by the inspector. They had to show compliance. They had to establish that this was a development which did not conflict or, to the extent that it did, was to be regarded as acceptable. This does not mean that an inspector will never have to disclose concerns where the parties have apparently assumed that there were none, but the general obligation to satisfy the Secretary of State of the matters which were identified will usually mean that no assumption can properly be made that an agreement will be accepted. If there is an issue of fact which could be covered by evidence and which the parties assume is not contentious, it may be that an inspector would not act fairly if he did not raise his concerns but reached an adverse conclusion on the basis of lack of evidence. But where the issue involves a planning judgment or the proper construction of a policy in a plan or its application to a particular factual situation, it seems to me that an inspector cannot, generally speaking, be criticised for not raising concerns at the time. It should be obvious to the parties that they have to deal with such issues.

[11]The witness called on behalf of the appellants in her statement in connection with R/RL3(5) said this:

"The school has not been successful in securing funding for the provision of enhanced facilities at Hart Field nor is it able to finance such provision from its own reserves. It is therefore essential, if the school is to secure the enhancement of its sporting facilities, for it to be funded by a limited amount of development. The actual area to be developed for housing constitutes approximately 22% of the total area and therefore accords with the stipulation of 'limited development', an area which was derived as a result of detailed consideration being given to the value, and hence amount, of residential development required to cross subside or fund the remainder of development in the form of enhanced facilities."

She is not there saying that financing is the only consideration.

[12]I am satisfied that the inspector was correct to consider that the policy in question was concerned with the scale of the development which, after all, in the context is the natural meaning of the words used. The point is that it must always be governed by the need to retain and to enhance the facilities, so that the development could not be justified if it went beyond what was needed to achieve that result. But it must also be limited in scale. The inspector's view that it was not was reasonable, and so her decision that it did not comply with the policy in my view was unimpeachable.

[13]As the Court of Appeal has made clear in R v Derbyshire County Council, ex parte Woods (1997) JPL 958, the court will determine as a matter of law what the words are capable of meaning, but will not interfere if the meaning given by the decision-maker is one which the words are reasonably capable of bearing. Thus, even if it was apparent that the parties were assuming that "limited" was only referable to what was needed to finance the facilities, and was not concerned with scale, it is difficult to see what the witness could have said if the inspector had disabused her of her assumptions. It is not a matter of evidence. The advocate could perhaps have made submissions, but it is difficult to see what they could have amounted to beyond mere assertion. However, as I have said, the inspector cannot be criticised for believing that the appellants were thinking in terms of scale as well as finance from what was said by the witness.

[14]R/RL 6 refers to accessibility of playing areas and parks. It is not suggested that the relevant facilities did exist in sufficient proximity to the proposed development. So there was, prima facie, a failure to comply with the policy. Miss Gardner's evidence (the witness on behalf of the appellants) was as follows:

"As I have explained [above] the Council's consideration of the planning application was informed by the open space audit undertaken by its consultants, PMP, in the formulation of the draft open space strategy. In any event, not only is there a surplus of open space provision in Eastlands ward but the effective net area of playing pitches would be increased; as a consequence I consider that the issue is not a quantitative one but a qualitative one. This assessment is particularly pertinent when there is no community use of the sports pitches at the present time although, as explained above, this would change with the construction of The Pavilion and the provision of on-site facilities for hiring out pitches and monitoring their use."

The inspector was entitled to decide that the requirements of R/RL3(6) were not met. This she did in paragraph 4.80 of her report. What she said was this:

"In addition to satisfying the open space standards in Policy R/RL1, Policy R/RL3 also requires consideration of the accessibility to different types of open space under Policy R/RL6. In that respect there seems to me to be poor access to equipped play ares and local parks. The Council was unable to say where the improvements to play areas, funded through the section 106 contribution, would take place. The applicant has regarded the issue as a qualitative rather than a quantitative one. Attention has been drawn to satisfying identified needs for an artificial pitch for the community to use and for improved grass pitches. In my view that does not address the issue raised by Policy R/RL6."

It seems to me that the inspector was right in saying what she did. It may well be that it would be and was being argued that what was provided was in itself sufficiently beneficial, so as to avoid the need to comply precisely with the terms of R/RL6. But the fact is that there was non-compliance. It seems to me that the inspector was entitled to disagree with the approach that had been made to compliance with R/RL6. It should have been appreciated that the conflict existed, and it was for the parties to satisfy the inspector that, notwithstanding the words used, there was compliance, in the sense that the intent behind the requirement was met. This they failed to do, and they cannot complain that they are now suffering as a result of that failure.

[15]The third ground I will deal with after I have considered the fourth and the fifth. The fourth ground relates to highway safety. Access to the development was to be by means of a double roundabout. The road in question has an existing mini roundabout and has a bad record of accidents. The inspector set out the road safety consideration in paragraphs 4.95 and 6. She said this:

"In my opinion highway safety is a critical matter in view of the following factors. The proposed access would be serving a development where a high proportion of users would be children and young adults, more vulnerable to the risk of accidents. There has been a history of accidents on Lower Hillmorton Road prior to the introduction of traffic calming measures. The proposed solution is an unusual design. Lower Hillmorton Road is a proposed SUSTRANS cycle route. From the evidence, both through documentation and that given at the inquiry, I have concern that the double mini-roundabout design has not been supported by comprehensive data and analysis. The traffic survey, which excluded Langton Road, was carried out after the principle and design of the scheme had been agreed. There is no information on traffic speeds. The implications of achievement of adequate visibility from Langton Road have not been specifically addressed. There is no obvious provision for cyclists. There is no evidence to demonstrate how the design would accommodate the manoeuvring required by coaches, refuse vehicles and delivery vehicles. I also would wish to be assured of the measures to minimise potential for driver confusion. These matters may well be addressed in the stage 2 and 3 safety audits, although it was confirmed in evidence that the basic layout would remain as currently proposed. In this case I consider that road safety considerations should be further investigated prior to determination in order that the implications of any necessary revisions may be fully understood and addressed. In this respect I attach significant weight to the observations of the Police Road Safety Unit, as there is nothing to demonstrate that the assurances sought have been adequately met by the amended design. Consequently I am not satisfied that the proposal provides for adequate and safe access at the junction with Lower Hillmorton Road. Local Plan Policy R/G1(3) has not been complied with."

Mr Booth complains about the description of the proposed access as being an unusual design. While double mini-roundabouts are not themselves uncommon, the design here does not accord with the standard design of such mini-roundabouts, and to describe it, as others have done, as unusual is not to misdescribe it. Whether or not it was unusual was hardly the point. What mattered was whether, in the circumstances, it could be regarded as providing an adequate and safe access. The parties were agreed that it would. The witness called to deal with highway matters asserted that it was satisfactory and that the highway authority and the local planning authority had accepted it. The inspector refers to observations of the Police Road Safety Unit. Those were contained in a letter of 2nd April 2003. What was said, so far as material, was this:

"In essence, it is feared that unless road safety considerations are fully thought through and fully addressed, road casualties could result from a combination of drivers failing to understand how to properly negotiate the junction (which will have to facilitate a number of potentially conflicting manoeuvres within the double mini-roundabout configuration) potentially combined with a relatively high through traffic speed. Accordingly, Warwickshire Police seek assurance from the Highway Authority that they are satisfied that the junction design will be entirely suitable for the anticipated traffic flows and movements in terms of road safety considerations."

There was a subsequent letter, dated 18th June 2003, from Warwickshire County Council, which, so far as material, said this:

"I have consulted our safety engineers on your proposals and hereby confirm that: 1. We agree in principle that a scheme similar to the one shown on your submitted drawing would be acceptable. 2. It is likely that the small island between the two roundabouts will have to be white paint, rather than a solid island. 3. A Stage 2 Detailed Design Safety Audit will be required, upon which we will need to comment. However, I understand that this cannot be undertaken by our in-house safety engineers as they have assisted in developing the design and do not currently have the necessary spare capacity."

The inspector was clearly concerned that insufficient was being done to assess the safety of the proposal for a double mini-roundabout. She gives, as I have already read out, sufficient reason for reaching that view. She was, indeed, on the material before her, entitled to reach that conclusion. The Highway Authority's response does not suffice to allay the concerns which had been expressed by the police and which were felt by the inspector.

[16]Ground 5 relates to noise. That is dealt with by the inspector at paragraphs 4.101 and 103 of her report. She says this:

"The occupants of the dwellings likely to be most affected from traffic noise are those nearest the main site entrance, rather than residents of houses fronting the roads in the locality in general. The applicant considers that noise levels at the houses adjacent to the site access would fall within acceptable limits, particularly with the addition of an acoustic fence. However, to date residents have been used to a low level of activity down the side and at the back of their houses. The development would bring a significant and perceptible change, the development estimated to generate in the order of 1000 vehicle movements on a Saturday. I also noted on the site visit that the dwellings have secondary windows in the side elevations, with main windows on the front and rear elevations. Whilst noise levels may be contained to acceptable overall levels, I consider that residents would be aware of a considerable amount of activity, whether from intermittent higher levels of noise from vehicles slowing and accelerating at the junction, the sight of vehicles coming and going or the light from headlights. Having regard to the proposed site layout my opinion is that residents of number 161 and particularly number 153 would experience significant disturbance. 4.103 Noise levels from the playing fields have been calculated as falling within acceptable guidelines. However, as I established with the applicant's witness at the inquiry, the noise levels would vary depending on the type of pitch (all weather or grass), the sporting activity and the ability to introduce noise attenuation. Thus for residents of houses on Lower Hillmorton Road and Fleet Crescent noise levels from the grass pitches were estimated at around 55 dBLAeq, regarded as an upper limit for gardens. Within that overall level there would be variation, with maximum levels from players shouting. I also noted on the site visit that the boundary treatments to the rear gardens adjoining the playing field are generally fairly low and open. This characteristic would not help contain noise, nor would it help screen private rear garden areas from activities, players and spectators. In my opinion and bearing in mind the frequency of use, there would be a harmful effect on the living conditions of adjoining occupiers."

Complaint is made that the average noise levels with which the development would comply were calculated so as to have regard to intermittent higher levels. So the inspector was in error in referring to the higher levels in relation to shouting. That may be so, but the inspector was rightly concerned to consider the effect of this development on the existing residents. That she did, and she considered the reality of the noise that would result from it, and the disturbance as well, and there could be no criticism of her reasoning in that respect. She was entitled to conclude as she did.

[17]That brings me to ground 3 which concerns affordable housing. That issue is clearly regarded as important by the Secretary of State. It is dealt with in the guidance to be found in PPG3. Paragraph 17 reads:

"The policy in this guidance on planning and affordable housing is set out in more detail in DETR Circular 6/98 Planning and Affordable Housing. Where a local planning authority has decided, having regard to the criteria set out in paragraph 10 of Circular 6/98, that an element of affordable housing should be provided in development of a site, there is a presumption that such housing should be provided as part of the proposed development of the site. Failure to apply this policy could justify the refusal of planning permission."

Circular 6.98 deals with this issue in paragraphs 22 and 22, so far as material, for this case. Those paragraphs read as follows:

"21. The Department's planning and affordable housing policy states that it may be desirable in planning terms for new housing development of a substantial scale to incorporate a reasonable mix and balance of housing types and sizes to cater for a range of housing needs; and that land for housing should be released on the basis that it will meet the housing needs that actually exist in the plan area. Therefore, where a requirement for an element of affordable housing is appropriate, it should be provided as a part of the proposed development. The release of a site, where a local planning authority has decided that an element of affordable housing should be pursued, without ensuring the provision of that housing on the land in question, may undermine the objectives of the policy. 22. However, if the local planning authority and the developer both consider that, on particular sites where a requirement for an element of affordable housing would be appropriate, it is nonetheless preferable that a financial or other contribution should be made towards the provision of the element of affordable housing on another site in the local planning authority's area, they should ensure that such arrangements would actually result in the provision of affordable housing (whether via new build or conversions), that would not otherwise be provided, in the local planning authority's area. These arrangements should not be used in respect of application sites which are inherently unsuitable for the provision of an element of affordable housing, such as those below the site threshold and other criteria set out in paragraph 10 above."

The appellants had included in their original design that 22 flats were to be affordable. The Council was unhappy with the concentration of these flats in one block and also because there was a local need, not for affordable flats but for small family houses. Accordingly, it was decided that a sum of £440,000 would be provided to enable affordable housing to be part of other developments, although the design retained the 22 flats which would be offered at the lower end of the market. It was not and has not been suggested that the agreement about the financial contribution which was proposed was other than reasonable.

[18]The inspector's conclusions are contained at paragraphs 4.491 and 92 of her report. What she there says is this:

"Affordable housing is to be secured through a financial contribution of £440,000 to off-site provision, an appropriate sum in view of the 25% target. This approach would be in accordance with the SPG and with advice in Circular 06/98. It would not be consistent with the presumption in PPG3 for provision to be made as part of the development on the site. I have had regard to the background leading to a financial contribution in lieu of on-site provision. This approach is based on the experience and knowledge of prevailing local circumstances and has been agreed between the parties. However, there is no evidence that the site characteristics would preclude on-site provision or that alternative forms of on-site provision were explored. There is not sufficient justification for departing from the advice in PPG3 and I conclude the proposal has not made appropriate provision for meeting affordable housing needs."

The advice in PPG3 and the circular are complementary. Indeed, paragraph 17 of PPG3 opens with the sentence:

"The policy in this guidance on planning and affordable housing is set out in more detail in the circular."

It is impossible to say that they should be regarded as separate requirements. There is no question of the one trumping the other. Those who are affected by them in deciding what development they should propose are entitled to believe, as is the natural meaning of what is said, that an agreement to make a contribution in lieu of providing affordable housing in the development itself will, provided that the agreement is reasonable, comply with the guidance. The presumption referred to in paragraph 17, and reflected in paragraph 21 of the circular, will not in such circumstances prevail. It was never suggested in this case that affordable housing could not be provided on site. Indeed, it had been part of the original design, but it was agreed that in the circumstances the alternative shown to be acceptable by paragraph 22 of the circular should be adopted. Thus, the inspector's reasons in 4.29 are not in accordance with the law, since the combination of the guidance and the circular cannot justify them.

[19]I have referred to the inspector's report. I have done so because the Secretary of State in all material instances simply relied on and repeated the reasons given by the inspector. Thus, in my view, the inspector and the Secretary of State are not entitled to rely on the absence of appropriate provision for affordable housing as a ground for refusing permission.

[20]Does this mean that I must therefore allow the appeal? The test I have to apply is whether, if he had not made this error, the decision would have been the same. Once the error is established, the burden rests upon the Secretary of State to satisfy me that that is the case. I must allow the appeal if the decision might have been different. The appellants do not have to persuade me that it probably would have been different. The Secretary of State sets out his conclusions at paragraphs 45 and 46 of the decision letter. I should read those:

"45. The Secretary of State agrees with the inspector that whilst there is a degree of policy compliance with the development plan and these would be consistent with PPG17, there are also a number of areas where the proposal conflicts with the development plan and other national policy, in particular PPG3. He considers that there is no need to release the greenfield land for housing at this sage. He considers that insufficient attention has been afforded in the design of the housing development to create a sense of place and that landscaping has not been considered as an integral part of the design. He also considers that highway design and provision for the car has been a dominant influence on the proposed layout; and that the proposal would not provide safe and adequate access to the development from the junction with Lower Hillmorton Road. He also considers that the frequency of the noise and the general disturbance from the intensive use of the proposed sports facilities would have a harmful and disproportionate effect on the living conditions of a number of local residents. The proposal has also not made appropriate provision for meeting affordable housing needs. He concludes that the housing development would not accord with policy in PPG3. The Secretary of State has taken into account the benefits from the provision of enhanced sports facilities to serve the school and the local community but has concluded that they are not sufficient to outweigh the major planning objections to the proposal, including the conflict with sustainable development objectives, the shortcomings in housing design, and the significant harm to the local environment. He is therefore satisfied that there are no material considerations of such weight as to indicate that he should determine the appeal other than in accordance with the development plan."

He has to balance the advantages of the development against the objections to it. The fact that there may be conflict with particular policies in plans is not conclusive.

[21]Affordable housing is an important aspect but, as is apparent, there were a considerable number of other objections which the Secretary of State relied on. It is important in this context to see what he says in paragraph 46 because, in carrying out the balancing exercise, he puts in the balance against the proposed development the concerns about the conflict with sustainable development objectives, shortcomings in housing design and significant harm for the local environment. None of those on their face would be objections created by the lack of affordable housing. I have wondered whether I can be satisfied, since he does not specifically indicate that any individual objection would of itself have been sufficient to refuse permission, that the weight that he has attached to the lack of affordable housing would not have made any difference to the result. But it seems to me that the wording that he has used in paragraph 46 enables me to be so satisfied. If he had considered affordable housing to have the weight which would mean that his mistake, his error in having regard to it in the way that he did, would have made all the difference, then he would have referred to it in that last paragraph of his decision.

[22]In those circumstances I have formed the view that, despite the error in question, it could not in the circumstances have affected the result. Accordingly, I must dismiss the appeal.

[23]MISS LIEVEN: I ask for a formal order for the application to be dismissed, and also I have an application that the claimant do pay the Secretary of State's costs in this application summarily assessed in the sum of £11,244. I have a statement.

[24]MR JUSTICE COLLINS: You have seen these? Have you had an opportunity to consider them with your client, whether you accept them?

[25]MR BOOTH: Yes.

[26]MISS LIEVEN: The one I referred to was for yesterday.

MR JUSTICE COLLINS: You have increased it for today's attendance.

[28]MISS LIEVEN: I have. I have had an opportunity to discuss yesterday's schedule.

MR JUSTICE COLLINS:I doubt if you could quarrel with the addition of today.

[30]MR BOOTH: The only issue I would raise is with the second page, work done on documents. We have broadly 20 hours of work done there. I query that figure, insofar as no witness statement ---

[31]MR JUSTICE COLLINS: I am tempted to say that it is your own fault for putting in your own bundle. If you choose to put in bulky documents, the other side is entitled to think that there is some point in them, and they go through them in case there is something lurking there that they need to consider. This is the lesson that should be learned. Do not put in unnecessary documents. If you lose you are going to pay for it. You say, even so.

[32]MR BOOTH: I say that 20 hours is relatively excessive. Perhaps the vast majority of those need not be done by a grade 6 Treasury Solicitor.

[33]MISS LIEVEN: Our costs are almost one-third of the claimant's.

MR JUSTICE COLLINS: That is always the way with the Treasury Solicitor.

[35]MISS LIEVEN: But it is hardly a point to be used against us. One asks oneself whether all of the difference could be made up in the claimant's preparation of fairly short witness statements. Point 2 is the point you have adverted to, very significant documentation. It does have to be gone through. Because it is a call in, an inquiry which is being challenged, there is greater liaison with the Office of the Deputy Prime Minister. A greater amount of scrutiny is taken over the matter so that no quarrel can be taken. They have been looking through the mass of material put before the court.

[36]MR JUSTICE COLLINS: I am afraid I am against you. On the face of it this was not unreasonable. The message can go back that if you choose to put in vast quantities of documents, you cannot complain if a longer time is taken in considering them. You have not resisted costs in principle. I dismiss the appeal with costs assessed in the sum of £12,124.