Darlington Borough Council v Secretary of State for Communities & Local Government [2007] EWHC 2762 (Admin)

Case No CO/10345/2006[2007] EWHC 2762 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 8 November 2007
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
DARLINGTON BOROUGH COUNCILClaimantv
Between
THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr M Copeland (instructed by Sharpe Pritchard) appeared for ClaimantMr J Auburn (instructed by the Treasury Solicitor) appeared for DefendantMr T Straker QC and MR C BUTLER (Russell-Cooke Putney London SW15 6AB) appeared for Second Defendant
Judgment
[1]It is important to bear in mind that to succeed in this court it is necessary that an error of law is established. It is not for this court to reconsider in any way the merits, nor to go behind planning judgments which have been properly exercised by an Inspector. Equally where there has been evidence put before an Inspector, whether in the form of written representations or oral evidence in the course of an inquiry that is held, the court is not concerned with matters that go to the weight to be attached to such evidence. That is a matter for the Inspector to decide. If it is said that he attached more weight than he should have done to a particular matter of fact, generally speaking that is not something which will prevail in this court.[2]The test is essentially the same test as applies generally as expounded by the House of Lords in the CCSU case applying the Wednesbury principles. It has been translated in terms of planning by observations of Lord Denning in Ashbridge Investments v Minister of Housing and Local Government [1965] 3 All ER 371 and by Forbes J in the oft cited principles set out in Seddon Properties v Secretary of State for the Environment 42 P&CR 26.[3]It is not necessary for an Inspector to deal with every sub-issue that has been raised in a case. His reasons must deal with the important controversial issues. Overall a decision by an Inspector has to be read as what it is, namely not a document which is to be treated as if it were a statute, and the language of which has to be picked over in some detail. It must be read in a broad common sense way and assessed as such.[4]If there are obvious errors in a decision and if it is apparent that an Inspector has failed to take account of some material matter that he should have taken into account, or has had regard to something which he should not have had regard to, or the material before him simply cannot justify the conclusion which he has reached, because it is one which is unreasonable and so perverse, then this court should interfere. However, the test or the threshold is, as the authorities make plain, a high one.[5]The background facts can be shortly stated. The appeal site is known as Unit 1 on the Morton Trade Park, Morton Park Road, about two-and-a-half kilometres, or so, from the town centre of Darlington. The unit in question is a single story warehouse situated within what is called the Yarm Road industrial area. It is one of four units in an L shaped block. The total floor space is something just in excess of 10,000 sq feet.[6]Morton Park itself accommodates, at present, a Morrison superstore, with a linked small retail mall, a large B&Q retail warehouse, a petrol filling station, a McDonalds restaurant and drive-through and a hotel/public house. Apparently there is also a small private hospital. The appeal site itself was authorised for B1, B2 and B8 uses, that is to say business, industrial and warehousing.[7]The interested party has made applications for planning permission for this unit as a large in-door children's soft play centre. That is the description. It is to be operated by a company called Scott Leisure, who have a number of such centres described as Mister Twister day centres. The idea is that it should contain similar facilities to those to which I have referred.[8]The original planning application, which gave rise to the appeal (the details of which were before the Inspector) indicated that Unit 1 has in fact been vacant ever since it was built in 2003, apart from a period of some two months, or so, when it was temporarily occupied in connection with a furniture storage and distribution business. Despite what are described as extensive mailshots and canvassing of potential occupiers, it has not proved possible for the interested party to obtain any tenant.[9]Mister Twisters will provide at this unit at least two party rooms, a three level soft play structure designed for children 4 to 12 years of age, and a separate baby and toddler system specifically designed for children between the ages of 0 and 4 years. They are said to be an encouragement to the development of the individual child's physical, interactive and motor skills. The features include themed artwork, ball pools, a spiral tube, open wavy slides, tunnels, obstacle runs, interactive sound and lighting effects, together with a computer games cave and a television area. The babies and toddlers will have the advantage of a baby crawling pit with soft shapes, a mini ball pool, a slide and a Little Tike's push-car area. There are inflatables to be provided as well.[10]It all sounds, no doubt, exceedingly attractive, and that is what is proposed to be on offer in this unit.[11]An application for planning permission was originally refused and the refusal was upheld on appeal by an Inspector in May 2005. The main reason for refusing that permission was, as the Inspector said, that the proposal had been put forward without the benefit of a proper needs assessment, or sequential site analysis. He took the view that it could have a potential to undermine strong local and national planning policy, which intended that vital and viable town centres should be protected and promoted. It was also not genuinely, or realistically, accessible by means of transport other than a car, and that would be counter to the objective of achieving sustainable development. Therefore he decided that the scheme, as put before him, was unacceptable.[12]The fresh application made sought to deal with those criticisms. In particular, there was carried out an assessment of need and an attempt to discover whether there were any alternative sites that would be appropriate. That exercise was, of course, carried out ex post facto. It was not carried out, as is normally desirable, before any application was submitted. Nonetheless, it was an extensive operation: some 38 properties were identified and rejected, for one reason or another. Essentially there were a number of criteria, which were said to be important and required to be met, if possible, for any site for this particular form of development. That was set out in the document that was presented to the Inspector on behalf of the interested party.[13]Paragraph 5.19 of this states as follows, under the heading of "Other Alternative Sites and Premises":
"A detailed assessment of sites and premises elsewhere in Darlington was carried out by the commercial agents Storeys:ssp in May 2006. The assessment is based on the specific locational requirements of Mister Twisters for an indoor children's play centre in Darlington. These requirements are: • a ground floor area of 10,000 - 12,000 sq. feet plus a 3,000 sq. ft. mezzanine (or room to construct) • plus 5,000 - 8,000 sq. ft. of outdoor/garden space • a relatively modern unit, clear span - no internal columns • 5 metre minimum eaves height • 100 parking spaces • an affordable rental Of these criteria the most essential are the floor area, adequate on-site car parking and the roof height. Any premises without the required roof height are totally unsuitable to accommodate the type of play equipment in this type of facility."
At 5.20 it does not say, in terms, that the car parking has to be at least 100, it simply says that it must be adequate for on-site car parking. The floor area is of obvious importance, but the crucial requirement is that the roof height be a minimum of 5 metres. That would rule out a number of other buildings which might otherwise be suitable, because it is not usual that individual floors built, for example, built for office, or indeed for any purposes in a town centre, would have such a height. Some might but that is an obvious restriction upon the availability of alternatives, and we are looking here at alternatives either in the town centre or on the edge of the town centre, at least primarily, for such sites. The claimants refused planning permission on 22 November 2005 for the necessary change of use, which would be class B2 of the Use Classes Order described as "assembly and leisure". The reasons given for the refusal were that it would be contrary to some employment policies because it would involve leisure development in an industrial area. I only refer to that briefly because that is not pursued in the claim before me as a matter of importance. Certainly it was not something that persuaded the Inspector to consider it appropriate to reject. This is then said:
"2. The proposal involves the development for leisure purposes of an out-of-centre site which is not easily accessible by a choice of means of transport. The applicants have failed to demonstrate to the satisfaction of the local planning authority that they have adopted a sequential approach to site selection, as required by the development plan and PPS6: 3. The proposal would have a small but unacceptable impact on the vitality and viability of Darlington Town Centre, contrary to the policies of the development plan and PPS6."
Pausing there, the Inspector dealt with that and decided that it would not have any impact in the circumstances. That was a finding which again is not the subject of any appeal.[14]Then fourth:[15]"The development, because of its location, would not be genuinely accessible by a choice of means of transport and would be likely to lead to an increase in overall distance travelled by car within the Borough, contrary to the policies of the development plan and PPS6 and PPG13."[16]PPS6, to which reference is made, is the policy statement covering planning for town centres. It is divided into chapters which deal with the general approach that should be reflected in the relevant plans, but also with development control, which is control of individual applications. The relevant paragraphs, which deal with the control of applications, are 3.8 to 3.11. They are largely concerned with retail developments, but they also cover leisure activities. They read:[17]"3.8 It is not necessary to demonstrate the need for retail proposals within the primary shopping area or for other main town centre uses located within the town centre." “3.9 Need must be demonstrated for any application for a main town centre use which would be in an edge-of-centre or out-of-centre location and which is not in accordance with an up-to-date development plan document strategy. Specific considerations in assessing need for retail and leisure development are set out below.” I think it is fair to say that there is not, as yet, what can properly be described as an up-to-date development plan document strategy. I think it is fair to say that there is not, as yet, what can properly be described as an up-to-date development plan document strategy.[18]Then it considers under the two headings "Quantitative Need" and "Qualitative Need":
"3.10. A needs assessment prepared in support of a planning application should, wherever possible, be based on the assessment carried out for the development plan document, updated as required, and in the case of retail development should relate directly to the class of goods to be sold from the development ('business-based' cases will not be appropriate). The need for additional floorspace should normally be assessed no more than five years ahead, as sites in the centre may become available within that period. Assessing need beyond this time period might pre-empt future options for investment in centres, except where large town centre schemes are proposed and where a longer time period may be appropriate to allow for site assembly. The catchment area that is used to assess future need should be realistic and well related to the size and function of the proposed development and take account of competing centres. ii) Qualitative Need 3.11 In addition to considering the quantitative need for additional retail or leisure floorspace, local planning authorities should consider whether there are qualitative considerations, as described in Chapter 2, that might provide additional justification for the development."
[19]It is apparent, through all that that as a general approach the statement indicates that quantitative need should be addressed, if possible, in preference to qualitative need. I emphasise the words if possible, because there may well be cases where it really is not possible sensibly to approach the matter on the basis of quantitative need.[20]In retail terms there is a comparison to be drawn between comparison and convenience shopping. The same is difficult to apply in relation to leisure, because there are so many different types of leisure activities that are capable of being provided. This is a specific type, aimed at children up to the age of 12, who would be expected to be accompanied by an adult in making use of those facilities. It is not designed for children to be on their own, or looked after by someone on site. It is, as I say, a specific type of leisure activity. Accordingly, it is not so easy to assess in quantitative terms what may be the need for such an activity. Nonetheless, it may be that in certain circumstances such an exercise would not be impossible.[21]In reaching his decision, which was based upon written submissions (there was no oral hearing in this case) the Inspector identified what he regarded as the main issues. These were:[22]“i. The need for the development and the availability or otherwise of alternative sites, especially in or on the edge of the town centre;[23]ii. The impact of the proposal upon a) employment strategy and b) town centre vitality and viability, and,[24]iii. In the light of conclusions on the above matters whether the proposal would result in any unacceptable increase in car use.”[25]Those three main issues, it is accepted by the claimants, were appropriate ones. In fact, the submissions have divided them in this way: within (i) the question of need and the question of alternative sites and, so far as (iii) is concerned, unacceptable increase in car use. The Inspector found that there was no adverse impact on town centre vitality or on employment strategy, particularly as the proposal would provide for 40, or so, new jobs. Again there is no attack upon the decision in relation to (ii).[26]The claimant's attack has been divided into a number of grounds and the skeleton argument put forward by Mr Copeland, and his expansion upon it, has dealt very fully and persuasively with the various grounds that are put forward. The first relates to need. It is asserted that the Inspector erred in the way he indicated that the quantitative measurement was not possible in this case. It was necessary to look to market demand in order to assess need.[27]It is necessary first to see what the Inspector said about this. What he said is to be found in paragraphs 5, 6 and 7 of his decision: "Need[28]5. The first thing to acknowledge in respect of this issue is that the need for leisure facilities is not capable of being measured in a quantitative way. The main indicators will be those gaps that have been identified by the particular market and whether or not such a facility is available in a reasonable location and distance for any group of residents.[6]29. Market demand therefore, will always be the key factor in the assessment of this need and the proposal seeks to provide a relatively specialist indoor play facility of a size that is currently not available within Darlington. Smaller soft play areas exist at a number of locations and different premises in the town but these are a different facility to that proposed. Topoli Joe's - situated in Northgate to the north of the town centre - meets some of the local demand for the type of play proposed but it is small and I have no reason to believe that it can cater for all of the market-assessed demand that would be generated by a town the size of Darlington. Indeed, the nearest equivalent facilities are in Stockton and Newton Aycliffe - locations that in themselves are not particularly convenient for Darlington residents.[7]30. The Council's response to the evaluation need relates primarily to the location of the facility - rather than producing any information that questions the assessment of the market led conclusions on need. I accept that little numerical evidence is available to support those conclusions but the appellants have experience of operating similar centres and it would seem particularly disingenuous to criticise the proposal for lack of information on this topic whilst offering nothing to counter the business conclusions produced. Given all these circumstances I consider that there is no reason to believe that in market terms a need for this facility exists."[31]It is necessary to see what was before the Inspector in relation to the question of need. That is to be found in paragraphs 5.5 onwards in the representations put forward by the interested party. Under the heading of "Assessment of Need" they make the point that it was not possible to undertake a detailed quantitative assessment of leisure need in the way that it is done for retail developments. For leisure uses the best indicators were gaps in the market identified by commercial demand or leakage from one town to another. It go on at 5.6:[32]"In the case of children's play centres need must be judged as a balance between market demand and existing supply. In terms of supply there is only one existing play centre in Darlington, Topoli Joe's in Northgate.[It is described] … It does not have designated car parking."[33]They continue in paragraph 5.7:[34]"Darlington Council is currently refurbishing the Dolphin leisure centre in the town centre. The scheme includes a new soft play area but this is a very different concept to an indoor play centre. Many local authorities have leisure centres with some form of soft play provision but they do not generally operate large scale play centres with specialist equipment, and this is the case in the Dolphin Centre. The facilities in the Dolphin centre will be complimentary to the play centre proposed in this appeal."[35]I do not think I need read more.[36]Suffice it to say that it was clear that there was material before the Inspector from the interested party which enabled him, if he accepted it, to form the view that there was a need. They provided arguments that it was not an appropriate way of dealing with the question of need to approach it on the basis of a quantitative assessment rather than a qualitative assessment. Having said that, it may be that the Inspector did not express himself as clearly as he might have done in the paragraphs that I have read.[37]Mr Copeland has submitted that he was clearly saying, in effect, that a quantitative assessment was never an appropriate measure for leisure facilities. He draws attention to the use of the word "always" in the first sentence of paragraph 6. Mr Auburn and Mr Straker submit that although it could have been put more clearly, in context the Inspector was dealing with the question of need as it applied in the circumstances of the case before him. He refers to this issue in the first sentence of paragraph 5. The issue was the need for the development and the availability, or otherwise, of alternative sites for this application.[38]I am bound to say that on the natural reading of what the Inspector has said, particularly having regard to the use of the word "always", in the first sentence of paragraph 6 (the first half appearing to deal with generalities and the second half descending to the particular) he does appear to have been adopting a blanket approach and suggesting that market demand will have to be the test. However, even if he did that, and even if it was wrong to have done that (as Mr Copeland points out, PPS6 itself indicates that a quantitative approach can be appropriate for leisure use) the reality is that the material before the Inspector was such as entitled him to take the view that a quantitative assessment was not a practical way of dealing with the question of need.[39]The issue before him was whether he accepted that the approach adopted by the interested party was one which persuaded him that they had established that there was a need. Whether or not one looks at it in quantitative or qualitative terms does not seem to me to be of particular importance. He was, in that context, entitled to have regard to the fact that there was no positive evidence put forward by the Council to counteract that which had been presented by the interested party.[40]Accordingly, as I say, it does not seem to me to matter what is the true construction to be placed upon what the Inspector said, and ascertaining the true construction is the sort of exercise that really is not entirely appropriate in dealing with Inspectors' letters. One has to look at the matter in the round. As I say, on the evidence that was before him, as it seems to me, he was entirely justified in deciding that a need was established.[41]There is an attack made upon his reliance on market demand. It is said that market demand is not a satisfactory means of assessing the question of need. It may well be that a particular applicant is producing, or is providing, a facility which, because it is offering rather more than can be offered by the existing, would attract not those who are facing an unmet need, but those who already are using the existing facilities and are simply going to transfer elsewhere.[42]Of course, that is a possibility, but, as I say, the material put before the Inspector was such as he was entitled to regard as providing a satisfactory means of showing that there was a need. It seems to me that market demand must be capable of being an indicator of need. Indeed, Mr Copeland did not contend to the contrary. Whether it is an appropriate indicator in an individual case will depend upon the circumstances of that case.[43]There are two matters that are raised in addition, which were not really pursued, unsurprisingly, with any vigour by Mr Copeland. The first is that he submits that the Inspector misunderstood where the burden of proof lay, because of his reference to the conclusions not being countered by any material from the Council. The reality is, as again is trite law, that burden of proof plays no part in planning decisions. All that the Inspector has pointed out, correctly and properly, was that he had had positive evidence from the interested party. He had had no evidence to contradict what the interested party was putting forward. He was, therefore, entitled to rely upon, adopt and accept the matters put forward by the interested party. It is not a question of burden of proof at all.[44]He is also criticised for having said in paragraph 7 that the appellants have experience of operating a similar centre. They did not, as Mr Copeland states, and the Inspector, therefore, made an error in that assumption. That, with respect to Mr Copeland, is not a good point. It is plain that the Inspector was perhaps, in shorthand, making the point that the centre would be operated by a company which had experience in dealing with this sort of centre.[45]So far as alternative sites are concerned, as I have already indicated, there was material before the Inspector that showed what exercise had been carried out, and how it had been carried out in trying to identify alternative sites. The Inspector makes the point that there was a need for a degree of flexibility with regard to the requirements. Mr Copeland drew attention to the matters I have already cited, which were the requirements indicated in the business plan. He suggested that that showed a lack of flexibility.[46]As is pointed out, the list of the 38 possibles that were identified made it perfectly clear that apart from the 5 metre minimum height, which clearly was absolutely essential, there was a possible compromise in relation to the other requirements. Indeed, from one point of view the fact that only 56 car parking spaces are available on the site in question indicates, in itself, that there is a degree of flexibility. The point can, of course, be taken in different ways.[47]Mr Copeland suggests that it is perhaps a little more sinister in the sense that that site has been chosen, and the approach has been to reject any other site because this is the site that they want. Therefore the car parking facility has been given a greater prominence in looking for alternative sites than is the reality.[48]It seems to me there really is no basis for that sort of suggestion. Even if it was not made explicitly, it lies behind, to some extent, the attack on the question of the approach made by the interested party to alternative sites.[49]The specific criticism is that the Inspector failed to indicate, or to deal with what was suggested to be the inflexible approach by the interested party. For the reasons I have given, it seems to me that it is quite wrong to regard the approach on the evidence as inflexible.[50]In paragraph 7 of the decision letter, as I have read, the concluding sentence was:
"Given all these circumstances I consider that there is no reason to believe that in market terms a need for this facility exists."
Since that is entirely contrary to everything that the Inspector had said, it is glaringly obvious that there was a typing error. It may be that the word "no" should not have been there, or the word "but" should have been included before that. However, to rely on that as a basis for challenging the lawfulness of the Inspector's decision is to scrape the bottom of the barrel. Indeed, in fairness to Mr Copeland he did not seek to develop that in his submissions before me. Accordingly, as it seems to me, the issue of alternative sites is not one that can avail the claimants. The Inspector was clearly unimpressed, to an extent, with the exercise that had been carried out because it had been carried out, as I have said, ex post facto. He made the point that where this sort of assessment was made following the dismissal of an appeal, the subsequent consideration of alternative sites could always be criticised for carrying out the exercise with a less than open mind. The Inspector was well aware of that. He directed himself properly in regard to that, but he was persuaded on balance, and he was entitled to conclude, as he did, on the evidence before him, that the issue of alternative sites had been properly addressed by the interested party. There were no such sites available. It is said that he indicated, as indeed he did, that there were no such sites available at present. The submission is made that he was looking at it too narrowly. PPS6 makes it clear that there should be consideration not only of the present, but also of the future. It seems to me that there is a limit to the extent to which the future can be taken into account. Of course, if it is apparent that there is likely to be a possible suitable site in the preferred location coming available within a relatively short, and, in any event, reasonable time, that may be a good reason for refusing permission for an out-of-town development, which is contrary to the general approach. However, to approach it on the basis that there might be, at some time in the future, such a site, is to put altogether too high a threshold which an applicant would have to cross to enable his application to succeed. It is, of course, as always, a question of fact and degree as to whether the future may properly be said to be able to produce a site that can be taken into account. Here the material before the Inspector was such that it quite clearly pointed, if accepted, to there being no such reasonable prospect. Accordingly, in so far as he erred, if he did, in talking about the present, it was not a material error for the purposes of deciding whether his decision was one that should be quashed. Finally I turn to accessibility and car use. The Inspector deals with this in paragraphs 14 to 16 of the decision letter. He refers there to Policy R24 of the Local Plan, which in fact raises very much the same issues as are raised in PPS6. The relevant policy reads as follows:
"The Council will safeguard and enhance the role of Darlington, and in particular Darlington Town Centre, as a focal point for arts and leisure facilities serving the sub-region. Proposals for the development of leisure facilities will be permitted within or on the edge of the town centre. Proposals for major facilities, attracting customers from a town-wide or larger catchment area, will be permitted elsewhere within the urban area only provided that: A There are no suitable sites available in or on the edge of the town centre; B There would be no damaging impact on the vitality and viability of the town centre, including the evening economy; C The site would be easily accessible by a choice of means of transport; and, D The development would not add significantly to overall travel and car use. Facilities serving a purely local catchment will be permitted in or on the edge of the defined district and local centres, subject to the same requirements as for new shopping development there (Policy s11). Where development proposals involve the demolition of buildings purpose designed and used, or last used, for leisure activities, the council will seek the provision of replacement facilities within the development."
I have read the whole policy, but the relevant aspects are the provisos A to D. The Inspector was satisfied that there were no suitable sites available and there would be no damaging impact on the vitality and the viability of the town centre. However, as Mr Copeland submits, he could not have been satisfied that the site would be easily accessible by a choice of means of transport, or that the development would not add significantly to overall travel and car use. Mr Copeland derives that from what the Inspector says in paragraphs 14 to 16. What he says is this:
"14. With regard to access the first thing to recognise is that the town centre or its immediate environs are likely to be the most accessible areas of the town for most residents. The use proposed is one that would strengthen the town centre and such a location would broaden its availability to those sections of the population that do not have access to a car and rely mainly on buses. However, Policy R24 of the local plan allows for leisure facilities that would attract customers from a town-wide or larger catchment area to be located elsewhere in the urban area subject to certain criteria. I accept that the proposal would be used almost exclusively by parents and children arriving by car - and this would be the situation, in my experience of this type of use, wherever the proposal would be located. Even in a town centre location car travel would be likely to be the major transport mode - simply because children have to be accompanied by an adult and the car provides a most convenient vehicle for such a journey. In addition, the immediate area is already one that generates a significant level of car journeys. That said I have also accepted that no suitable site exists in or near the town centre. Accordingly it would be unacceptable to turn this proposal away simply because it would attract car users. All development generates some car trips and since the last appeal there is now a firm proposal to provide a bus stop in close proximity to the appeal site. This would be served by a regular bus service that links with the town centre and thus onwards to most areas of the town. My view is that this would provide a convenient alternative to the car for some visitors to the proposal - although whether it proves an attractive alternative for a relatively significant number of visitors remains to be seen. Nevertheless, it does mean that the proposal can be accessed by public transport and therefore goes some way to meeting the underlying objectives of those policies that seek to reduce car use. Accordingly I consider that this aspect of the objection to the proposal cannot be sustained."
There are two main criticisms made of that. First it is said that the Inspector was wrongly relying on his own experience, and that it really could not be said sensibly that the facility would be used, almost exclusively, by those arriving by car. That presupposes that those using it would have to have a car. It is at least questionable whether a use, which is easily accessible by other than a car, would be attended only, or even in the majority of cases, by those coming by car. There is, of course, also to be taken into account, although it has not been specifically stated here by the Inspector, but he mentions it, as I have indicated earlier, that similar facilities are not available in Darlington. Those who wish to take advantage of them would have to travel at least to Newton Aycliffe, which I gather is some five miles away, or to Stockton, which is further away. That might well involve a car journey. Thus one might have to balance the question of whether overall there would be an increase in car use when considering the alternatives that exist, if this proposal were to be turned down. However, again, as it seems to me, whether or not the Inspector was right to rely upon his own experience in that respect, the reality is, as he says in paragraph 16, that he has accepted no suitable site exists in or near the town centre. He then forms the judgment that it would be unacceptable to turn the proposal away simply because it would attract car users. He makes the point that since the last Inspector's decision there had been an improvement in the sense that the interested party was going to make arrangements so that the Council will ensure the provision of a bus stop, which would, it was expected, mean that there was an easier means of access. There is a factual issue, as I understand it, as to whether such a bus route, or such a provision of buses, would, in reality, be satisfactory, but the Inspector again is entitled to form the view that he did, as a matter of fact, on that. The other criticism, levelled by Mr Copeland, is that the Inspector does not, and he should have, indicated whether he accepted that this was outside the plan, or was compliance with the plan. As is well-known, in considering any application for planning permission the local planning authority and the Secretary of State has to have regard to the relevant plan and any other material consideration. Section 36 of the Act makes it clear that of these the plan will prevail in the sense that it must be the first important consideration. Of course the fact, if it be a fact, that an application for a development falls outside the plan, or is contrary to the plan, does not mean it has to be turned down. The other considerations may mean that it is right to grant permission. However, submits Mr Copeland, it is necessary for the Inspector to show that he has gone through the correct exercise and he cannot do that unless he indicates whether there has been a failure to comply with the policy and the plan. Whether there has been a failure to comply with the plan can sometimes be not altogether an easy matter to determine. It is plain that the law does not look kindly upon an exercise that singles out individual policies, or parts of individual policies, and says that if there is an apparent failure to comply with them, there is ipso facto a breach of plan. There are often in plans conflicting policies. That is obvious, for example, when employment considerations may conflict with a particular location for a development. That, to some extent, is the case here. Therefore when one is considering whether a particular proposal is, or is not, in conflict with a plan, one has to look at the relevant policies together and decide whether overall there is a failure to comply. However, as it seems to me, in the context of the decision made in this case, it really was not necessary for the Inspector to go through the exercise and certainly not in terms which Mr Copeland suggests. What he had to do was decide whether on all the material, including the relevant provisions of a plan, this was, in his judgment, in planning terms, an application that could be permitted to proceed. I have indicated that in my view there is nothing in the letter which shows that he has not had regard to all material considerations in reaching his conclusion. Overall, for the reasons that I have set out, in my judgment this claim must fail.[51]MR AUBURN: My Lord, I am grateful. We have an application for costs. I have a schedule that was served on--[52]MR JUSTICE COLLINS: I have not seen the schedule. You have it have you, Mr Copeland?[53]MR AUBURN: I think it was provided to the court. It was served on my opponent.[54]MR COPELAND: That is right. There was a schedule that was served yesterday afternoon.[55]MR JUSTICE COLLINS: Hang on a second. Mr Straker?[56]MR STRAKER QC: We have not produced a schedule. We recognise we are volunteers. Unless there is some aspect of discretion I am missing, I do not wish to address you on costs.[57]MR JUSTICE COLLINS: I assumed that you recognised that you would not be able to get costs. Sorry I just wanted to get that out of the way. So it is only the costs of the--[58]MR COPELAND: I am grateful for that indication. Before my learned friend goes further.

MR JUSTICE COLLINS: You cannot challenge, I take it, costs in principle?

[60]MR COPELAND: No, my Lord. I am trying to assist the court in this way: I do not challenge the schedule as submitted either.

MR JUSTICE COLLINS: You do not?

[62]MR COPELAND: No, my lord.[63]MR JUSTICE COLLINS: Good. In that case I will dismiss this claim. The costs are to be assessed in the sum of £7,336.[64]MR STRAKER QC: May I be a pedant and mention something for the transcript?

MR JUSTICE COLLINS: Yes, I am quite sure that I have got something wrong.

[66]MR STRAKER QC: No, it is merely this, my Lord, that when your Lordship comes to cite Seddon, your Lordship ought really to put 42 in front of P&CR, because they are cited by volume number rather than year.[67]MR JUSTICE COLLINS: I am grateful. I will do that.