JG Ipswich Llp v Secretary of State for Communities and Local Government & Anor [2009] EWHC 91 (Admin)

[2009] EWHC 91 (Admin)Case No CO/10551/07
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27 January 2009
Before
MR JUSTICE KEITH
Between
J G Ipswich LLPClaimant(1) Secretary of State for Communities and Local GovernmentDefendants(2) Babergh District CouncilDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Jeremy Cahill QC and Miss Jenny Wigley (instructed by Eversheds LLP) for ClaimantMr Paul Brown (instructed by The Treasury Solicitors) for First DefendantHearing Hearing dates: 27 and 28 November 2008
Judgment

Introduction

[1]On 3 July 2006, the claimant, J G Ipswich LLP (“the developer”), applied to the second defendant, Babergh District Council (“the local planning authority”), for outline planning permission to redevelop a site in Sproughton Road just outside Ipswich. That application was subsequently refused by the local planning authority, but since it had not given notice of its decision within the prescribed period, the developer appealed to the first defendant, the Secretary of State for Communities and Local Government. The Secretary of State decided to determine the appeal herself, and following a hearing before an inspector appointed by her, the inspector recommended in a report dated 21 August 2007 (“the inspector’s report”) that the appeal be dismissed. By a letter dated 18 October 2007 (“the Secretary of State’s letter”), the Secretary of State adopted that recommendation, dismissed the appeal, and refused to grant planning permission for the proposed development. The developer now questions the validity of the Secretary of State’s decision by an application under section 288(1) of the Town and Country Planning Act 1990.

The basic facts

[2]The site. The site which the developer wishes to redevelop (“the appeal site”) consists of about 53 hectares of land some 2½ kilometres from Ipswich town centre. Until 2001, sugar was refined from beet at a factory on the site. There are a number of derelict buildings and other structures in the middle of the site, including three concrete silos which are visually prominent. The developer is the current owner of the site.[3]The proposed development. The development for which the developer sought planning permission would result in the appeal site being used for a number of purposes, but by far the main component of that use would be the provision of up to 1,100 homes (35% of which would be affordable housing). The other uses included shops, financial and professional services, restaurants and cafes, a care home, a health centre and crèche, and a primary school. In addition, there would be some open spaces, and up to 3.44 hectares of the site would be used for business or general industrial purposes, or for use for storage or as a distribution centre. These combined purposes were said by the developer to have the potential to generate 300-500 jobs. This is to be contrasted with the number of jobs which the developer claimed would be created – only up to 100 or so – if the site was to be used only for storage and distribution activities.

The local plan

[4]The relevant plan for the area at the material time was the Babergh Local Plan Alteration No. 2 (2006) (“the local plan”). It was adopted in June 2006. There are three policies in the local plan which are relevant for present purposes. First, the local plan wanted to maintain the availability of land which could be used for employment-related purposes, which meant for uses which would generate employment. Accordingly, para. 4.21 stated that the local planning authority would “establish a rolling programme to ensure a minimum of 5 years’ supply of land for employment purposes at any one time”. The local plan then proceeded to identify a number of key sites which might be used for such employment-related purposes. One of those key sites was part of the appeal site. It related to about 34.4 hectares of the site, and in relation to it the material part of policy EM 04 provided:
“The former ‘British Sugar’ (sugar beet factory) site, Sproughton (Ipswich fringe) is allocated for retention in employment related use(s). Proposals for redevelopment or re-use of the site must be approached on a comprehensive basis, with full regard to the future of the entire site. A range of land uses will be required, as appropriate to the different parts of the site …”
The effect of this policy was to earmark much of the appeal site for employment-related uses.[5]The local plan noted that a “development brief” would be produced in co-operation with Ipswich Borough Council, the owners of the appeal site and other relevant parties. No such brief had been developed by the time the developer submitted its application to the local planning authority on 3 July 2006, but that was hardly surprising in view of the short time which had elapsed since the adoption of the local plan. It should be noted that policy EM 04 accorded with a recommendation by the inspector who had considered an objection to the adoption of this part of the local plan initiated by the previous owners of the appeal site. He had concluded that the site – with its “excellent” access to the A14 – was “well located for employment development purposes, but given the juxtaposition of industrial development, a poor site for housing”.[6]Secondly, although the local plan wanted to promote housing development in towns in its area, such development would not be approved for a site which could be used for employment-related purposes. Accordingly, the material part of policy HS 01 provided:
“In towns, housing developments will be granted planning permission, provided they have no material adverse effects on residential amenity, the environment or traffic generation, or result in the loss of a viable employment site.”
This presumption in favour of housing development, though not at the expense “of a viable employment site”, applied to the appeal site because the site was regarded as being within the town of Ipswich.[7]Thirdly, the local plan wanted sites which had been used for employment-related purposes in the past to continue to be used for such purposes. That applied to the appeal site in view of its previous use. The relevant paragraphs of the local plan are paras. 4.57-4.60, which read:
“4.57 The District Council considers that in an area under pressure for residential development and where appropriate new employment sites in villages and towns are hard to find, there is as a general rule, a pressing need to protect existing employment, sites and premises. 4.58 Many proposals for re-using or redeveloping employment sites and premises come forward for determination. In such instances, in order to demonstrate that other forms of employment use have been fully explored, documentary evidence will be required to demonstrate that a proper and sustained marketing campaign, at current market value, for either continued or alternative employment purposes has been undertaken. Important factors in evaluating the appropriateness of such a campaign will be the length of time it has been pursued and the prevailing market conditions. Examination of documentation of enquiries and responses will be expected. 4.59 The marketing campaign will have to be agreed between the determining authority and applicant(s) before it begins. This will include the following: • length of campaign; • asking price; • sales particulars; and • number, frequency and source of advertisements. 4.60 In agreeing the asking price, an independent valuation may be required, that the applicant will normally be expected to fund. The District Council will apply policy EM 24 to all proposals affecting land, sites or premises in, formerly in, or allocated for employment use. This will be supported by supplementary planning guidance to help people with their planning applications. Proposals will be expected to keep to this guidance.”
No supplementary guidance of the kind envisaged by para. 4.60 was ever produced. • length of campaign; • asking price; • sales particulars; and • number, frequency and source of advertisements.[8]These considerations were brought together in policy EM 24, which was incorporated into para. 4.60, and read as follows:
“Planning applications to redevelop or use existing or vacant employment land, sites and premises for non-employment purposes, will only be permitted if the applicant can demonstrate that their retention for an appropriate employment use has been fully explored. This may be undertaken in one of the two following ways: 1. by an agreed and sustained marketing campaign, undertaken at a realistic asking price; or 2. where agreed in advance, the applicant can demonstrate that the land, site or premises are inherently unsuitable or not viable for all forms of employment related use.”
This policy is not as happily worded as it might have been, but the effect of it, I am sure, is that where, as here, the local planning authority had to consider an application for the redevelopment of land which had in the past been used for employment-related purposes, but the application sought permission for a redevelopment which proposed a use of the land for other purposes, planning permission would only be granted if the developer could show that the land was either inherently unsuitable, or not viable, for employment-related uses. The developer could get the local planning authority’s agreement in advance that the land was either inherently unsuitable or not viable for such a use. Or they could demonstrate the necessary unsuitability or non-viability by “an agreed and sustained marketing campaign, undertaken at a realistic asking price”. The marketing campaign envisaged by the policy was not, of course, to identify whether there was a market for the homes and other units which the developer wished to build. It was intended to identify whether the site retained a realistic potential for employment-related uses.[9]The relevant part of para. 4.61 of the local plan read as follows:
“The use of the approach listed at 2. in policy EM 24 will only be considered acceptable when agreed in advance by the determining authority and the applicant. This approach will require the applicant to employ appropriate commercial expertise to demonstrate that the land, site or premises in question are inherently unsuitable or not viable for all conventional forms of employment related use …”
I take this to mean that where the developer wishes to get the local planning authority’s agreement in advance that the land is either inherently unsuitable or non-viable for employment-related uses, they will need the support of professionals with the appropriate commercial expertise.

The Secretary of State’s decision

[10]The Secretary of State agreed with the inspector that the developer’s application for planning permission raised four main issues: see para. 294 of the inspector’s report and para. 10 of the Secretary of State’s letter. They were(i) whether the appeal site should be retained wholly for employment-related uses,(ii) whether the need for general or affordable housing in Babergh District and the Ipswich area justified the development of the site in the way the developer proposed,(iii) what the impact of the proposed development would be on the capacity of the local and trunk road network, and(iv) what the potential effect of odour from nearby sewage treatment works would be on the amenity of residents of the proposed development.[11]The local plan was to play an important part in the Secretary of State’s determination of these issues. Since the local plan formed part of the development plan for the area, the Secretary of State was required, by section 38(6) of the Planning and Compulsory Purchase Act 2004, to determine the application “in accordance with” the local plan “unless material considerations indicated otherwise”. In agreement with the inspector, she found it difficult to conclude that a mixed-use development whose main component was the provision of up to 1,100 homes was in accordance with a local plan which allocated the site for employment-related purposes. She therefore went on to consider whether there were material considerations which indicated that the appeal should be determined otherwise than in accordance with the local plan (and any other plans included in the development plan).[12]This approach was criticised by Mr Jeremy Cahill QC for the developer. The local plan incorporated in policy EM 24 the circumstances in which the redevelopment of land allocated for employment-related purposes would be permitted for uses which included ones which were not employment-related. It followed that a mixed-use development of the kind which the developer proposed could be in accordance with the local plan, provided that its non-viability or unsuitability for employment-related uses had been demonstrated. Accordingly, the issue for the Secretary of State was not whether such non-viability or unsuitability of the site for employment-related uses as had been demonstrated by the developer constituted merely a material consideration which indicated that planning permission should be granted even though the proposed development was not in accordance with the local plan. The issue for the Secretary of State was whether the non-viability of unsuitability of the site for employment-related uses had been demonstrated, because if so the proposed development would have been in accordance with the local plan.[13]I am inclined to agree with that submission, but at the end of the day the approach which the Secretary of State adopted did not make any difference. She agreed with the inspector that the latter two issues – namely, those relating to the road network and the local sewage treatment works – should be resolved in favour of the proposed development. It follows that neither of these two issues could stand in the way of the grant of planning permission. The first issue – whether the appeal site should be retained wholly for use for employment-related purposes – is the one on which this case turns. As we shall see, on that issue the Secretary of State concluded that the non-viability of the site for exclusively employment-related uses had not been demonstrated, and she therefore addressed the very question it is said she should have addressed, albeit in the context of whether such non-viability as might have been demonstrated would have been a material consideration which indicated the grant of planning permission notwithstanding the provisions of the local plan.[14]On that issue, the Secretary of State referred to the developer’s attempts to show that the development of the appeal site for employment-related uses was not viable on financial grounds, “whereas” the proposed development had a stronger claim to providing employment than the form of development most likely to be promoted under the allocation of the site in the local plan. It is said by Mr Cahill that this contrast was something of a mismatch: financial viability is one thing, and the comparison between the opportunities for job creation of different forms of development is something else. I do not agree with this criticism of the Secretary of State. It puts too much emphasis on the word “whereas”. What the Secretary of State was saying was that the developer had sought to persuade the inspector of two things against the background of what was common ground – namely, that the proposed development was viable. They were that any other development of the appeal site was(i) not viable, and(ii) unlikely to generate employment in the way the proposed development would.[15]In support of the first of these claims, the developer relied, amongst other things, on the cost of developing the site in a way which would generate employment. Consultants put those costs in the region of £17.3m, more than half of which would be incurred in the first three years. Had the price of the land and the developer’s profit been included, the costs would have been even higher. Other consultants had identified the low level of annual take-up or demand for land which had been allocated for employment-related purposes in the Ipswich area, the low level of value of such land locally, and the corresponding availability of good quality competing sites in the locality, particularly those which benefited from existing services and other infrastructure in place. It was against this background that the chartered surveyors instructed by the developer carried out their analysis of the take-up rate which would have to be achieved if the development was to move out of deficit. That take-up rate was estimated to be 4.21 hectares a year over about eight years. That was regarded as being unrealistic in the light of the supply of better quality, established competing sites.[16]The inspector was not persuaded by this analysis. He thought that there were “shortcomings or areas of enduring uncertainty” in the evidence on both the viability of the appeal site for employment-related uses, and on the estimated demand of the appeal site for such purposes. He added that there were a number of important questions which had not been definitively answered, including whether there was land available at Felixstowe for secondary port-related container activity, and how marketable the appeal site might be to meet any needs which could not be met at the port. The inspector did not think that the developer had successfully rebutted the claim of one port operator about the significance of the appeal site on the first of those questions: if that claim was correct, the appeal site was the only site in the Ipswich area which had been identified as capable of meeting the need for land for secondary container activity. Indeed, the inspector thought – and the Secretary of State agreed – that the developer’s attempts to show the unsuitability of the appeal site for such activity had been “somewhat overplayed”.[17]For her part, the Secretary of State agreed with the inspector that the evidence did not point towards there being any site other than the appeal site within the Ipswich area of a size suitable for use for large general industrial purposes, or for use for storage or as a distribution centre, whether for port-related use or not, though she noted three things which the inspector had acknowledged:(i) such evidence as there was of the need for port-related storage or distribution operations in the Ipswich area was far from decisive;(ii) the appeal site was not commercially attractive for business use, so that the employment which the development of the site was likely to generate would be in the areas of general industrial use or for storage and distribution operations; and(iii) although the appeal site was suitable for storage and distribution operations, there was little prospect of the site supporting one of the key objectives in the emerging regional spatial strategy for the east of England, namely that of securing the efficient and sustainable movement of freight. However, the Secretary of State agreed with the inspector that the developer’s estimate about the future take-up rate of the appeal site for employment-related uses – namely 1 hectare a year – was unduly pessimistic: although there had been no evidence of any site in the sub-region where a take-up rate of, say, 3 hectares a year had been achieved, the inspector had thought it possible that continuing growth in the area could make such a rate of take-up more likely. She also agreed with the inspector that the site had not been marketed in such a way as to test that take-up as policy EM 24 had required.[18]The inspector’s conclusion was that it was preferable for any decision about the re-allocation of the site to be undertaken as part of a wider exercise to identify the extent of the need for land required for employment-related uses over a larger area, so that the emerging regional spatial strategy’s ambitious new targets for job creation could be achieved. As we shall see, the Secretary of State agreed with that.[19]In the interest of completeness, I should refer to the other main issue which the inspector and the Secretary of State addressed, which was whether the need for general or affordable housing in the Babergh District and the Ipswich area justified the proposed development, even though that issue did not feature in argument. Again, the Secretary of State agreed with the inspector’s approach. He had acknowledged that the level of affordable housing proposed by the developer was a factor which favoured the proposed development. Indeed, the Secretary of State herself attached significant weight to that consideration. Moreover, although the inspector who had considered the objection to the adoption of the local plan had described the appeal site as poor for housing, the current inspector had regarded the appeal site as suitable for housing. He had also regarded the proposed development as having the potential to contribute significantly towards an urban renaissance of this part of the Ipswich area. However, although the Secretary of State disagreed with the reliance which the inspector had placed on a particular feature of the case (which in the inspector’s view militated against overriding the recent allocation of the appeal site for land which would generate employment), the Secretary of State agreed with the inspector about the weight to be attached to Babergh District’s 5 year plan for the supply of land for housing, which did not rely on housing development on the appeal site. Although the additional housing which would be created by the proposed development was not likely to result in any harm to local housing objectives, the locality’s ability to generate sufficient land for housing under the 5 year plan meant that there was no need for a site which had recently been allocated for employment-related purposes to be re-allocated for a different use.[20]In the light of her views on the four main issues which the developer’s application for planning permission had raised, the Secretary of State expressed her overall conclusion in paras. 32 and 33 of her decision letter as follows:
“32. … the Secretary of State concludes that the proposed housing provision would significantly contribute to the region’s housing requirement, and the affordable housing provision would help it meet an identified need. Nevertheless, the appeal proposal for mixed uses is not in conformity with the allocation of the site for employment uses in the recently adopted local plan, and the Secretary of State considers that the employment needs of the region as identified in the development plan and the emerging [regional spatial strategy] should not be dismissed lightly. In particular, she considers that no decision to develop this site other than in accordance with the development plan should be taken in advance of serious attempts to comply with the policies of local plan policy EM 24 and should be based on a comprehensive assessment of the employment land needs of the sub-region and the [Ipswich area]. 33. Like the inspector, the Secretary of State had found shortcomings in the evidence of both the main parties on the viability of this site and she considers that it has not yet been demonstrated conclusively that the employment allocation under local plan policy EM 04 is no longer appropriate. She therefore concludes that, at this point in time, there is insufficient evidence to justify determining this appeal other than in accordance with the development plan. However, she takes the view that if, after a reasonable period has elapsed to allow the effective marketing of the site in accordance with the local plan provisions, the future development of the site remains uncertain, it would then be appropriate to review the local plan allocation, preferably as part of a generic and fully informed exercise.” (Emphasis supplied)
She was therefore not closing the door on the possibility of the local plan being reviewed to see whether the appeal site could be released for development for non-employment-related uses, but her reference to the recent adoption of the local plan – only a month or so before the developer applied for planning permission for a completely different type of development from the one which the local plan had allocated the appeal site for – shows that she thought that the application was premature at the very least.

The developer’s grounds

[21]The developer challenges the Secretary of State’s decision on four grounds. It is necessary to consider each in turn.

Ground (1): Marketing

[22]As I said in [17] above, the Secretary of State agreed with the inspector that the appeal site had not been marketed in accordance with policy EM 24. The site had been marketed by its previous owners prior to the adoption of the local plan, but no steps had been taken since then to market it, let alone to agree to a marketing campaign with the local planning authority – assuming for present purposes that which Mr Cahill did not accept, namely that the local planning authority (rather than the Secretary of State who actually considered the application for planning permission) was “the determining authority” as envisaged by paras. 4.59 and 4.61 of the local plan. That is not disputed by the developer, but the criticism of the Secretary of State is that she ought to have concluded that the developer’s failure to comply with how policy EM 24 required the developer to demonstrate the non-viability of the site for employment-related uses was an inconsequential matter which should not have affected the merits of the application for planning permission. If the Secretary of State was satisfied that the developer had demonstrated that the site was not viable for employment-related uses, the failure to comply with the procedural requirements of policy EM 24 should not have mattered.[23]This criticism would only have advanced the developer’s case if the Secretary of State had regarded the developer’s failure to comply with those procedural requests as decisive. But she did not. She went on to consider whether the developer had demonstrated that the site was not viable for employment-related uses. Mr Cahill acknowledged that when he agreed that the real issue in this case was whether the Secretary of State’s conclusion on the viability of the site was flawed. If the developer failed on that ground, any criticism of the Secretary of State along the lines of ground (1), however well-founded, could not affect the outcome of this case. That mirrored the concession made by Mr Paul Brown for the Secretary of State. He acknowledged that if it was found that the Secretary of State’s conclusion on the viability of the site was flawed, the fact that the Secretary of State had, in agreement with the inspector, concluded that the appeal site had not been marketed as policy EM 24 had required could not save the Secretary of State’s decision.

Ground (2): Viability

[24]If one reads the Secretary of State’s letter literally, it could be said that she did not say in terms what her conclusion was on the viability of the appeal site for employment-related uses. But she agreed with the inspector’s conclusions on the principal issues relating to its viability, and a fair reading of her letter is that she agreed with him that the evidence was inconclusive. To the extent that the Secretary of State is criticised for not reaching a view, one way or the other, about the viability of the site, I reject that criticism. She was entitled to determine the issue on the basis that under policy EM 24 the burden of demonstrating that the site was not viable for employment-related uses was on the developer, and the developer had not demonstrated that.[25]There were a number of issues on which the inspector found in favour of the developer on the way to reaching his conclusion on the viability of the appeal site. For example, he was not convinced that the development costs could be spread evenly over “the early and middle years of the development cycle as to fundamentally reduce the burden on a developer of such a process over the years”. I take that to mean that the developer had to have funding in place up front. And he found that the local authority’s cash flow exercise depended “not only on continuity of take-up” during the period to which the exercise related, “but also on some very optimistic events occurring late on, the likelihood of which is to my mind too speculative to be reliable”. But the developer’s core argument is that the evidence when taken as a whole did not justify the conclusion that the developer had not demonstrated that the site was not viable for employment-related uses. A number of points are taken, but they were eventually encapsulated in a document handed up by Mr Cahill setting out four key findings which the court was being asked to make. On analysis, they boil down to two key points, relating to the chartered surveyors’ analysis and the appeal site’s possible use for port-related activities.[26]The chartered surveyors’ analysis. The inspector did not refer in his report to the conclusion reached by the chartered surveyors instructed by the developer – namely that a take-up rate of 4.21 hectares a year had to be achieved over about eight years if the development was to move out of deficit. In the circumstances, it is said that he failed to take that into account – which would have amounted to a failure on his part to take into account a material consideration. Alternatively, if he took it into account, he could not rationally have concluded the take-up rate would have been sufficient to make the use of the site for employment-related purposes viable.[27]When one looks at the analysis which the chartered surveyors carried out, it is apparent that this argument depends on the consultants’ figure of about £17.3m for a development for employment-related uses being either correct, or correct if discounted by 20% to take into account the imponderables which have to be built into any forecast. It is perfectly true that the inspector did not question the figure of £17.3m, but he did not accept it either. He was critical of the local planning authority’s calculations on the costs of a development for employment-related uses, which in his view did not take sufficient account of the need to fund the development up front, and their assessment of likely take-up which he thought was optimistic. But his dissatisfaction with the figures which the local planning authority came up with did not mean that he had to accept the developer’s. He must either have been uncertain about them, or he must have concluded that a take-up rate of something in excess of 3 hectares a year could not at that stage be excluded. The inspector was entitled to be cautious about re-allocating the appeal site to a mixed-use development when the evidence did not irresistibly point to its non-viability for employment-related purposes, especially when the emerging regional spatial strategy carried what the inspector described as “high expectations” that land would be found to support “the challenging new job targets set” in areas such as this. There was, he said, some evidence that there would be a demand for more land for employment-related uses.[28]There was a further point which supported the inspector’s view about the viability of the appeal site for employment-related uses despite the chartered surveyors’ analysis. The developer proposed that 3.44 hectares of the appeal site be used for employment-related purposes. The inspector said that he had not been told how it had come about that this amount of land had been set aside for that purpose. The relevant witness had agreed that it was not his evidence that the 3.44 hectares represented the limit of the land which could be used for employment-related purposes. The inspector found that if the development had a mixed use in which housing predominated, there was no reason why a mixed-use development in which uses for employment-related purposes would predominate was not viable. There was, he said, some evidence that there would be a demand for greater use of the appeal site for employment-related purposes than the current development proposed.[29]The appeal site’s possible use for port-related activities. The inspector made two comments which the developer claims completely undermines his findings that the availability of land at Felixstowe for port-related activities and the suitability of the appeal site for such activities were themselves issues which had not been definitively answered. The first related to the evidence relied upon by the local planning authority of a possible demand for land for storage and distribution activities from one container company and of a general need expressed by other container companies for land to continue to be allocated in or close to Felixstowe for port-related activities. The point made on behalf of the developer is that the local planning authority could not demonstrate that the appeal site was viable for employment-related use even when that evidence was taken into account in its favour.[30]I do not see how this advances the developer’s case. It was not for the local planning authority to demonstrate that the appeal site was viable for employment-related use. It was for the developer to demonstrate that it was not. Moreover, the part of the local planning authority’s evidence upon which the developer relies for the purpose of this argument relates only to the need for land to be available for port-related activities, and not to the other critical question, which was whether the appeal site could viably supply that need. Even if it could be said that the evidence which the inspector accepted had resolved the question whether there was a need for land to be available, what remained unanswered in the inspector’s view was the viability of the appeal site to meet that need.[31]The other comment which the inspector made related to the unlikelihood of the appeal site being able to support the key objective in the emerging regional spatial strategy of securing sustainable freight operations. If there was little prospect of the appeal site being able to do that, it was said to be irrational for the inspector to have regarded the unanswered question about the demand for land for port-related activity as telling against the developer.[32]Again, I disagree. The appeal site’s unsuitability for the movement of freight had to do with the lack of navigable waterways in the vicinity and the factors which weighed against the provision of the necessary rail infrastructure. But the inspector did not think that this necessarily meant that the site could not be used for the storage or distribution of containers or other port-related activity. Otherwise he would have said so. At the very least, the fact that the inspector regarded the question as not definitively answered meant that he thought that it was either too soon to reach a determination on the topic or that the evidence was too inconclusive for a final judgment to be made.[33]For these reasons, I do not believe that it can be said that the Secretary of State’s agreement with the inspector that the developer had not demonstrated that the appeal site was not viable for employment-related uses was legally flawed.

Ground (3): Job creation

[34]In his report, the inspector referred to the contrast which the developer claimed there was between the number of jobs which the proposed development had the potential to create (300-500) and the number of jobs which the use of the appeal site for storage and distribution activities would generate (up to 100). If the developer’s claim about the job creation potential of the different uses of the appeal site was correct, that was an important factor which the Secretary of State should have taken into account. It is said on the developer’s behalf that it would have been absurd for her to insist on the appeal site being retained for employment-related uses, when the mixed-use development proposed by the developer had the potential to create many more jobs than if the site had been retained, wholly or even predominantly, for employment-related uses. So the developer’s case is that the Secretary of State did not take the job creation potential of both uses into account. Alternatively, if she did, her conclusion on the topic was irrational.[35]Having read and re-read the relevant part of the inspector’s report a number of times, I do not think that the inspector reached any conclusion on what the job creation potential of both uses was. The relevant paragraph is para. 325, and a fair reading of it is that the inspector was spelling out what the developer was claiming, and acknowledging that if its claims were correct the proposed development had a stronger claim to supporting job creation than the form of employment-related development which was most likely to be promoted under the allocation of the site by the local plan for employment-related uses. That, I think, is how the Secretary of State read para. 325, because the structure of the first sentence of para. 16 of her letter suggests that she was not accepting that the proposed development had a stronger claim to supporting job creation than the form of employment-related development most likely to be promoted under the allocation in the local plan. She was merely acknowledging that she had taken account of the developer’s attempts to demonstrate that.[36]But let us assume that the inspector did conclude that the developer’s claim about the job creation potential of the different uses of the appeal site was correct, and that the Secretary of State agreed with him. After all, that was the basis on which Mr Brown was content for me to proceed. Would that have made her insistence on retaining the appeal site for wholly or even predominantly employment-related uses irrational? The Secretary of State would have had to weigh up the proposed development’s greater potential for job creation against the loss of the site for other uses – such as secondary port-related container activities – which, though not creating as many jobs, were nevertheless needed. That was the balancing exercise which the Secretary of State conducted in para. 16 of her letter. There is no reason to suppose that the Secretary of State ignored any relevant consideration in that exercise. Indeed, she noted (see [17] above) many of the considerations which militated against retaining the appeal site for the sort of employment-related use likely to be promoted under the local plan allocation. In my view, the Secretary of State was entitled to conclude that so long as the key issues relating to the availability of land at Felixstowe for port-related activities (or other employment-related uses) and the suitability of the appeal site for such activities remained unanswered, the greater job creation potential of the proposed development should not be regarded as decisive. I cannot say that this conclusion was irrational.

Ground (4): Reasons

[37]The developer’s case is that the Secretary of State – and therefore the inspector, because she agreed in all respects (bar one relating to the need for housing) with his conclusions and the reasons for them – did not give sufficient reasons for the critical finding that the developer had not demonstrated that the appeal site was not viable for employment-related uses. I do not agree. The reasons which they gave were that the possibility that there was no land available at Felixstowe for secondary port-related container activity, or that the appeal site might be able to meet that need, or that the take-up might be sufficient to make the appeal site’s use for that purpose financially viable, had not been excluded. You can argue whether those reasons were sufficient to justify the conclusion that the non-viability of the site for employment-related purposes had not been demonstrated, but that these were the core reasons which the Secretary of State and the inspector gave for that conclusion cannot seriously be doubted.

Conclusion

[38]For these reasons, I do not believe that the validity of the Secretary of State’s decision can be questioned, and this application must be dismissed. I wish to spare the parties the trouble and expense of coming to court when this judgment is handed down, and at present I see no reason why the developer should not pay the Secretary of State’s costs of the application, to be the subject of detailed assessment if not agreed. If the developer wishes to argue otherwise, its solicitors should notify my clerk of that within 14 days of the handing down of this judgment, and I will decide the appropriate order for costs without a hearing on the basis of such written representations as the parties wish to make. If the developer wishes to apply for permission to appeal, its solicitors should notify my clerk of that within 7 days of the handing down of this judgment, and I will consider that question as well without a hearing. However, any appellant’s notice will still have to be filed within 21 days of the handing down of this judgment.