Leeds City Council v Secretary of State for Communities & Local Government & Anor [2010] EWHC 1412 (Admin)

Case No CO/14453/2009[2010] EWHC 1412 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at
Venue Leeds Combined Court
1 Oxford Row
Venue LeedsDate 17 June 2010
West Yorkshire
LS1 3BG
Before
MR JUSTICE KEITH
Between
Leeds City CouncilClaimant(1) Secretary of State for Communities and Local GovernmentDefendants(2) Libra Demolition LimitedDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Robert White (instructed by Leeds City Council) for ClaimantMr Hereward Phillpot (instructed by the Treasury Solicitor) for First DefendantMr Vincent Fraser QC (instructed by Walker Morris) for Second DefendantHearing Hearing dates: 20 and 21 April 2010Further written submissions: 30 April, 4 May and 6 May 2010
Judgment

Introduction

[1]This application is one of three applications which were ordered to be listed and heard together because they raise similar questions about the extent to which it is necessary to look for new sites for housing development outside the City of Leeds and the impact which developments on greenfield sites might have on the regeneration of urban areas in the City of Leeds. In each case, applications for outline planning permission were refused by Leeds City Council (“the Council”), the local planning authority. Appeals to inspectors appointed by the Secretary of State for Communities and Local Government were successful, and outline planning permission was granted in each case subject to various conditions. The Council now questions the validity of the grant of outline planning permission by applications to the High Court under section 288 of the Town and Country Planning Act 1990 (“the Act”), and seeks orders quashing the grant of outline planning permission in each case.[2]Each of the appeals was heard by a different inspector. Although each of them came to the same conclusion about the outcome of the appeals, they each expressed their reasons differently in the letters containing their decisions. Since it was necessary to focus on each of their letters separately, it was decided to hear all the arguments in relation to the first of the applications before moving on to the next one. It turned out that the two days which had been set aside for the hearing of all three applications were not enough. By the end of the second day, the court still had to hear the Council’s counsel in reply on the first of the three applications. It was decided that the most convenient course was for his submissions in reply to be reduced into writing, together with any further submissions on the law from the other parties, and that the two other applications would not be heard until judgment was handed down on the first application. To the extent that this judgment decides any issues of principle which are common to all three applications, that could well shorten, if not dispose altogether of the need for, hearings in the other two applications.[3]This application relates to a proposed development on land to the south east of Yeadon. It is a greenfield site. The proposal was for the erection of 40 residential dwellings on 1.06 hectares of land, with a range of accommodation from apartments with one or two bedrooms to houses with three to five bedrooms. The developer was Libra Demolition Ltd (“Libra”). The application which was submitted to the Council, as I have said, was for outline planning permission only, with only the means of access to the site to be the subject of detailed consideration. The Council’s Planning Committee refused the application on 20 February 2009. The Council’s reasons for doing so were not included in the bundles for use at the hearing before me, but no-one challenged Libra’s statement at the hearing of the appeal about what those reasons were. There were two of them. First, there was a sufficient supply of previously developed land available for housing making it unnecessary for greenfield sites such as the one at Yeadon, which had been allocated for residential development eventually, to be brought forward for development. Secondly, if a greenfield site was developed while brownfield sites in the City of Leeds remained undeveloped, the regeneration of the urban areas in the city would be compromised. The inspector who heard Libra’s appeal from that decision visited the site on 11 August 2009, and he issued his decision on the appeal granting outline planning permission subject to conditions in the form of a letter dated 20 October 2009 (“the decision letter”).

The relevant policies

[4]National policy. Planning Policy Statement 3 (“PPS3”) was published by the Department for Communities and Local Government in November 2006, and set out the national planning policy framework for delivering the Government’s housing objectives, which involved a “step-change in housing delivery” (para. 2), as a result of the need for additional housing identified in the research and consultation which underpinned PPS3. It said that regional spatial strategies should identify the demand for housing for the region for a sufficient time to enable local planning authorities to plan for housing over a period of at least 15 years (para. 34). It recorded that the national annual target was for at least 60% of new housing to be provided on previously developed land (para. 41). Local planning authorities had to identify sufficient specific sites to meet the demand for housing in the first five years. Those sites should be available at the beginning of the period, they should be suitable for development, and there should be a reasonable prospect that housing would be developed on the sites within five years (para. 54). Local planning authorities had also to identify specific sites to meet the demand for housing in years 6-10 and if possible in years 11-15. Those sites should be in a suitable location for housing development, and there should be a reasonable prospect that the sites would be available and could be developed at the beginning of the relevant period. The supply of land for housing development was to be managed in a way which ensured that a continuous five year supply of such sites was maintained, i.e. at least enough sites to deliver the housing which was needed over the next five years of the period (paras. 55-57).[5]When it came to planning applications, para. 69 of PPS3 required local planning authorities to have regard to a number of matters, including “[e]nsuring the proposed development is in line with planning for housing objectives, reflecting the need and demand for housing in, and the spatial vision for, the area and does not undermine wider planning objectives, eg addressing housing market renewal issues”. Para. 71 provided:
“Where Local Planning Authorities cannot demonstrate an up-to-date five year supply of deliverable sites, for example, where Local Development Documents have not been reviewed to take into account policies in this PPS or there is less than five years supply of deliverable sites, they should consider favourably planning applications for housing, having regard to the policies in this PPS including the considerations in paragraph 69.”
On the other hand, although an inability to demonstrate an up-to-date five year supply was a material consideration in favour of allowing planning permission for residential developments, the presence of an up-to-date five year supply was not of itself a reason for refusing such an application. That is apparent from para. 70, which provided:
“Where Local Planning Authorities have an up-to-date five year supply of deliverable sites and applications come forward for sites that are allocated in the overall land supply, but which are not yet in the up-to-date five year supply, Local Planning Authorities will need to consider whether granting planning permission would undermine achievement of their policy objectives.”
[6]Regional policy. The Regional Spatial Strategy for Yorkshire and the Humber to 2026 (“the RSS”) was published by the Department for Communities and Local Government in May 2008. Section 2 of the RSS (which set out the RSS’s spatial vision and core approach) contains a series of policies outlining the broad strategy for the location of development in the region. The supporting text said (para. 2.73) that growth in the region was to be “concentrated particularly on the Regional and Sub-Regional Cities and Towns, whilst ensuring the creation of sustainable rural communities”. The two policies which are relevant for present purposes are policies YH4 and YH5. Policy YH4 stated that “Regional Cities and Sub-Regional Cities and Towns should be the prime focus for housing [as well as other things] in the region”, and added that its target was for “[m]ore than 50% of housing development in the region as a whole to be focused on the Regional and Sub-Regional Cities and Towns”. Leeds is one of the four regional cities in the region, and though Yeadon is close to Leeds, it is not within Leeds. Policy YH5 stated that “Principal Towns should be the main focus for housing” as well as other things in the region. Yeadon is not one of the 32 principal towns in the region, but the policy said that other towns could be added to the list of principal towns “in particular circumstances supported by compelling evidence”. The supporting text said (para. 2.40) that it would not be appropriate for there to be a significant increase in the number of principal towns, though in parts of the West Yorkshire district (in which Yeadon is), it was likely that there would be a need for some additional principal towns to be identified.[7]Policy YH7 dealt with the allocation of sites for development once the distribution of development between cities and towns in accordance with policies YH4, YH5 and YH6 (which dealt with local service centres, i.e. towns and villages which provide services and facilities for people living in the surrounding rural areas, of which Yeadon was one) had been determined. It stated that local planning authorities should allocate sites by giving:
“1. First priority to the re-use of previously developed land and buildings and the more efficient use of existing developed areas within the relevant city of town 2. Second priority to other suitable in-fill opportunities within the relevant city or town 3. Third priority to extensions to the relevant city or town.”
[8]When it came to housing, the RSS spoke of a 15-20 year cycle during the early years of which the aim was to make “the best use of existing allocations and already identified urban potential in cities and towns” (Table 2.2). Section 12 of the RSS dealt specifically with housing. It contained a series of policies outlining its strategy for the provision of housing in the region. The two policies which are relevant for present purposes are policies H1 and H2. Policy H1 was in these terms:
“A. The region’s housing stock should be improved and increased to provide appropriate accommodation for all households wanting homes, taking account of strong economic growth in the Leeds City Region, regeneration and increasing economic growth in South Yorkshire and the Humber Estuary sub area, and the need to place a greater emphasis on meeting local needs in rural areas. B. Plans, strategies, programmes and investment decisions should ensure the delivery of the average annual net additions to the dwelling stock set out in Table 12.1 in locations that accord with the Core Approach and Sub Area policies, taking account of indicative timing set out in Table 12.2.”
Table 12.1 showed that for Leeds the figure for annual average net additions to the housing stock for 2004-2008 was 2,260 homes, and the figure for annual average net additions to the housing stock for 2008-2026 is 4,300 homes. (Table 12.3 showed that the gross figures were 2,700 and 4,740 respectively when the demolition of some buildings and the contribution made to the housing stock by reducing the vacancy rate were taken into account.) The supporting text said (para. 12.4) that the figure for 2008 onwards reflected “the higher levels of growth that now need to be planned for”. It was the result of a “range of evidence and debate … about household growth in the region including [e]vidence about the availability of suitable land”.[9]Table 12.2 identified Leeds as an area where the annual net housing growth was likely to rise from below the 2008-2026 average to above it. The supporting text said (para. 12.6) that this anticipated rate of growth was “indicative only, and intended to provide a reference point for future monitoring”. However, it said (para. 12.14) that Leeds “already accommodates more jobs than households and job growth is expected to continue to be strong. It is an essential part of the strategy to significantly increase the supply of homes in the district in order to meet housing needs and reduce the need for more and longer distance commuting “.[10]In order to meet the number of new homes required by Policy H1, there had to be a “step-up in the delivery of new homes”. To achieve that, “and to ensure that new homes are in locations that accord with the [RSS’s] Core Approach and Sub-Area policies”, Policy H2 stated: “A. Local Planning Authorities should complete Strategic Housing Land Availability Assessments (SHLAA) during 2008 as evidence for [Local Development Frameworks] B. Local Planning Authorities should identify and manage the release of land to maintain the momentum of urban transformation of the Regional Cities, Sub-Regional Cities and Towns and Principal Towns by: 1. Prioritising housing development on brownfield land and through conversions to contribute to a regional target of at least 65% 5. Adopting a flexible approach to delivery [of new homes] by not treating housing figures as ceilings whilst ensuring that development is focused on locations that deliver the [RSS’s] Core Approach and Sub-Area policies”.[11]It is fair to say that national and regional policy about the need to create more housing did not go down well with the Council. The Deputy Leader of the Council was reported on 11 October 2007 to have said:
“Over the past few years we have just managed to meet the old targets by building on previously developed land, but this Government is now saying that to meet these new figures we must look at greenfield or even green belt sites. This is simply not acceptable and as a council we will do everything in our power to resist Gordon Brown’s Stalinist housing policies.”
Indeed, on 19 November 2008, the Council resolved:
“That this Council believes that the Regional Spatial Strategy (RSS) target of 4,740 homes per year should be scrapped with immediate effect to allow local authorities to make a more realistic decision based on local economic factors and housing need.”
[12]Local policy. The Leeds Unitary Development Plan Review (“the UDP”) was adopted by the Council in July 2006. Section 7 of the UDP related to housing. The two policies which are relevant for present purposes in that section are Policies H1 and H3. They were among the policies saved by the Secretary of State in order to ensure a continual supply of land for development, though it was made clear that their extension did not mean that the Secretary of State would endorse the policies if presented to him as new policies. In saving these policies in the UDP, the Secretary of State drew attention to the importance of reflecting the policies in PPS3 in planning decisions.[13]Policy H1 stated:
“Provision will be made for the completion of the annual average requirement identified in the Regional Spatial Strategy.”
The supporting text said that the current requirement was for 1,930 homes a year. Accordingly, the current requirement was significantly less than what the RSS said needed to be planned for from 2008 onwards. Policy H3 stated that “the delivery of housing land release” would be controlled in three phases. The second phase (which was provisionally identified as relating to the period 2008-2012) referred to housing land being released “after phase 1 … when and if existing housing land supply is demonstrably short”. The third phase (which was provisionally identified as relating to the period 2012-2016) referred to housing land being released “after phase 2 … when and if existing housing land supply is demonstrably short”.[14]Paras. 7.2.8-7.2.10 of the supporting text, so far as is material, read as follows:
“7.2.8 The allocations identified in phase 1 of Policy H3 are for the most part brownfield sites and can be developed at any time within phase 1 or later. The allocations in phases 2 and 3 are on greenfield sites and these represent a reserve of land to be drawn on as and when other sources of supply become demonstrably insufficient to maintain output at the H1 rate [i.e. the 1,930 homes a year]. This means that the timing of release of phase 2 and 3 allocations is not fixed (although phase 3 cannot overtake phase 2). The phase 2 allocations will only be released when supply conditions require, and it is quite possible that they would not be released until after 2012, if alternative land sources were still adequate. Once the phase 2 allocations have been released, the phase 3 allocations will become the reserve and will be released in their turn when it is judged that they are needed to meet the H1 rate. 7.2.9 The phase 2 and phase 3 allocations are complete packages of sites which will be released in their entirety if conditions warrant. Once released, component sites will not be returned to the reserve … 7.2.10 The packages will be released when supply is demonstrably short. The adequacy of supply will be assessed twice a year in the Housing Land Monitors referred to above. The main indicator of shortage will be if the average completion rate in the two years preceding the Monitor is over 10% below the H1 requirement and if the supply of land – defined as unused allocations from the last phase plus outstanding permissions for dwellings on sites for 5 or more dwellings – amounts to less than a two years’ supply at the H1 rate. Although strongly suggestive of shortage, these indicators are not to be treated as determinative criteria that will automatically trigger the release of greenfield allocations. There may be other factors which temper the message of the indicators – for example, there could be a large stock of planning applications awaiting determination which, if approved, could be expected to rapidly restore the ability to meet the H1 target. A final decision will be taken after considering all the information in the Monitors.”
The site at Yeadon was included in the package of sites allocated for release in phase 2. It was therefore a site which had been identified by the UDP as one which was suitable for residential development.[15]It should be noted that the UDP preceded the RSS. The Council’s case is that this is a significant factor. The RSS introduced polices about where new developments should be located (policies YH4, YH5, H1B and H2B) which were not in existence when the UDP was adopted. As the Secretary of State said when saving some of the policies in the UDP, it was likely that the emergence of new regional policy would be afforded considerable weight where local policies had been adopted a long time previously. To the extent that the policies in the RSS about where new developments should be located were inconsistent with the UDP, any conflict had to be resolved in favour of the RSS because it had come into existence later: see section 38(5) of the Planning and Compulsory Purchase Act 2004.

The decision letter

[16]In paras. 5-19 of the decision letter, the inspector addressed whether there were sufficient sites within the City of Leeds to meet the city’s future housing needs. He referred to the statement in the RSS that Leeds was one of the districts where the annual net housing growth was likely to rise from below the average for the period from 2008 to 2026 to above the average. In that connection, he noted that the requirement in the RSS for additional homes in the City of Leeds over the period from 2009 to 2014 was for 21,500 homes (i.e. 4,300 x 5), though the Council had adjusted that figure to 20,570 homes to take into account the surplus of homes which had become available over the period from 2004 to 2008.[17]Against that, the inspector compared that figure with the number of homes which the Council estimated would become available over the period from 2009 to 2014. That figure was 17,950 homes. The deficit in the anticipated demand for homes over that period was therefore 2,980 homes. However, the inspector noted that the Council had concluded a local area agreement with the Department for Communities and Local Government. According to the Council, that agreement identified an annual target for the period from 2008 to 2011 of 3,400 homes, with the amount increasing by 100 homes in each of the following three years. The agreed target was therefore for 17,600 homes (i.e. 3,400, 3,400, 3,500, 3,600 and 3,700 in each of the five years) to become available in the years from 2009 to 2014, which matched (save for only 10 homes) the Council’s own estimate of 17,590 homes becoming available over that period. The match between(a) the Council’s own estimate of the number of homes which would become available between 2009 and 2014 (17,590 homes) and(b) the number of homes which it had agreed with the Department as the target for those years (17,600 homes) was the foundation of the Council’s case that there would not be a shortage in the supply of homes over the period, and that there was therefore no need for applications for planning permission for sites in the package of sites allocated for release in phase 2 to be “considered favourably” (as required by para. 71 of PPS3) at that stage.[18]However, the inspector noted that a recent planning inquiry into a proposed development at Oulton and Rothwell had considered how many homes were likely to become available in Leeds between 2008 and 2013. The period was different from the period which the inspector in the present case was considering, namely, the period from 2009 to 2014. But the Council conceded at the hearing before the inspector that had the inspector in the inquiry been considering the period from 2009 to 2014, “his conclusion would probably have been very similar”. The inspector in the inquiry had concluded, on the evidence before him, “that a more realistic estimate of the deliverable supply calculated in accordance with [Department for Communities and Local Government] advice would be about 3 years at the RSS annual average, which equates to about 12,900 dwellings”, i.e. 3 x 4,300. It was in the light of the conclusion reached by the inspector in that inquiry that the inspector in the present case decided that the evidence which had been presented to him was “insufficient … to demonstrate” that the difference between(a) the previous inspector’s figure of 12,900 homes and(b) the number of homes agreed with the Department for Communities and Local Government of 17,600 homes, and especially the “significantly higher [net] requirement” of 20,570 homes in the RSS, “would be closed”.[19]The inspector noted that the Council favoured applications for development of brownfield sites over greenfield sites, and that it had exceeded the national target for at least 60% (para. 41 of PPS3) and the regional target for at least 65% (policy H2B of the RSS) of new housing being provided on land which had previously been developed. However, he made the point that the Council’s concern about the proposed development was simply a matter of timing bearing in mind that the site had been identified in the UDP as one which was suitable for development. He concluded that “its release now would be unlikely to prejudice the continuing achievement of brownfield targets” (emphasis supplied), for the reasons he went on to give when he turned to whether the regeneration of the urban areas of Leeds would be compromised.[20]The inspector set out his conclusions on the issue about whether there were sufficient sites within the City of Leeds to meet the city’s future housing needs in paras. 18 and 19 of the decision letter:
“18. I acknowledge that on current supply figures, the Council will find it difficult to resist other applications for sites in Phase 2 and subsequently for those in Phase 3. Nevertheless, if the step change in housing delivery is to be achieved, it is important that sufficient suitable sites are available to meet the projected demands that have been identified. In setting a target of 65% of housing development on brownfield land, the RSS implicitly accepts that some new housing will be provided on greenfield land. Furthermore, RSS Table 2.2: Delivering the core approach over 15-20 years expects Local Planning Authorities in the early years of the plan to make best use of existing allocations and already identified urban potential in cities and towns. 19. This leads me to conclude on this issue that given the lack of an up-to-date 5 year supply of deliverable sites, residential development on the appeal site would make a useful contribution to making up the shortfall of housing land supply in Leeds. Its release now would be consistent with PPS3, the general thrust of Policies YH1, YH7, H1, H2, H3 and Table 2.2 of the RSS and saved policies H1 and H3 of the UDP.”
[21]In paras. 20-24 of the decision letter, the inspector considered the impact which permitting the development of a greenfield site would have on the regeneration of the inner urban areas of Leeds. He began by noting that the Council accepted that the site to which the appeal related was too small to have “a significant direct effect” on the regeneration of the urban areas of Leeds. However, he said that the Council opposed the proposed development because “the release of greenfield sites incrementally would send the wrong message to developers who would be encouraged to pick the more straightforward sites to bring forward at the expense of those in the regeneration areas”. Since there is no challenge to the inspector’s approach to this issue, it is necessary only to set out the inspector’s conclusion on it in para. 24 of the decision letter, which was that “… the proposal would not cause unacceptable harm to the strategies in the RSS to regenerate the inner urban area of Leeds.”

The grounds of challenge

[22]There were originally seven grounds of challenge to the decision of the inspector. These have been refined to six in the skeleton argument of Mr Robert White for the Council. One relates to one of the conditions which the inspector imposed, and the other to whether it was appropriate for outline planning permission to have been granted without the inspector considering the adequacy of the provision of on-site and off-site greenspace. I shall come to those grounds later, after I have considered the grounds which relate to the inspector’s conclusion as to whether there were sufficient sites within the City of Leeds to make it inappropriate for a greenfield site such as Libra’s site at Yeadon to be developed.[23]Ground 1. Section 38(6) of the Planning and Compulsory Purchase Act 2004 required the inspector to determine Libra’s appeal in accordance with the statutory development plans unless material considerations indicated otherwise. The statutory development plans were the RSS and the UDP. Mr White argued that the proposed development did not accord with the RSS since Yeadon was not one of the cities or towns where housing development was to be focused, and the proposed development was therefore not in a location which delivered the core approach. The fact that the site had been allocated in the UDP for eventual residential development had been overtaken by the RSS which showed that the issue was no longer when the site could be released for development, but whether its release at all would conform to the RSS. The criticism of the inspector therefore is that he did not determine the appeal in accordance with section 38(6) because he did not consider whether releasing this greenfield site for development was in accordance with the core approach. To be precise, he never considered whether the site was actually in a location which accorded with the core approach, and since it was not, he did not give any thought to whether the material considerations indicated that planning permission should nevertheless be granted for a site which was not at a location which accorded with the core approach. Critically, the inspector did not refer in his decision letter to(a) para. 2.73 of the RSS, which identified the core approach to growth in the region as having to be concentrated particularly on the cities and towns,(b) policies YH4 and YH5 of the RSS which said much the same thing, and(c) policies H1B and H2B of the RSS, which talked of development being focused on locations which accorded with the core approach. Indeed, the inspector concentrated, so it is said, on the effect of the development of the site on the supply of land for housing, and he regarded the lack of a sufficient supply of land for housing as determinative of the appeal.[24]Part of Libra’s response to this argument is that the policies which said that housing development should be focused on the cities and towns were not among the reasons why the Council had refused Libra’s application for planning permission in the first place, nor was it the basis of the Council’s appeal to the inspector. The Council’s reasons for refusing Libra’s application for planning permission had more to do with its belief that there were sufficient brownfield sites to meet the city’s housing needs, and less to do with the fact that Yeadon was not among those locations on which housing developments should be focused. Indeed, if the Council’s statement for the appeal is anything to go by, the fact that the City’s housing needs could be met by the re-use of previously developed sites was the core point it was making. Although the Council’s statement referred to policies YH4, YH5, H1B and H2B of the RSS, its key argument was expressed in para. 2.7 of the statement as follows:
“To approve the development of the appeal site would compromise the aims and objectives of the RSS as it would lead to the premature release of a greenfield site whilst a significant number of brownfield sites remain, compromising the future of their development and regeneration of the inner urban area and wider main urban areas of Leeds.”
That was the second issue which the inspector addressed, and although the Council disagreed with his conclusion, it acknowledges that there is no legal basis on which it can be challenged.[25]I cannot go along with Libra’s argument – at any rate not in its entirety. One of the points which the Council made to the inspector was that residential development could not go ahead on the site at Yeadon. In para. 2.9 of its statement, the Council stated:
“It is the [C]ouncil’s opinion that the location of the appeal sites [sic] does not accord with the Core Approach and thus the appeal scheme is contrary to H1B notwithstanding that it is an allocated site in the UDP.”
However, the core approach did not require all housing development to take place in the cities and towns identified by policies YH4 and YH5 of the RSS. They had to be the “main” or “prime” focus, but that language itself envisaged housing development taking place elsewhere. There was, therefore, no question of the inspector determining Libra’s appeal otherwise than in accordance with the RSS simply because he permitted a development on a greenfield site outside those cities and towns. The fact that he permitted such a development did not mean that he ignored the policies in the RSS about where the focus of housing development should be.[26]The critical question for the inspector was whether, having regard to the requirement in the RSS about where the focus of housing development should be, it was nevertheless appropriate for the site at Yeadon to be developed, not just prior to its proposed development in phase 2, but to be developed at all. That was a matter for the inspector’s planning judgment, for which the ability to meet the demand for housing in the City of Leeds by the re-use of previously developed sites was an entirely legitimate consideration. Indeed, failing to take this into account would have resulted in the decision he made being flawed on that account. The inspector concluded that the supply of available land for housing over the five years between 2009 and 2014 did not meet that demand. That conclusion is challenged in ground 4, but given that policy H3 of the UDP had allocated the site at Yeadon as one which could be released for residential development if there was a demonstrable shortfall in the supply of available land for housing, and since Table 2.2 of the RSS expected best use to be made of existing allocations (which must be taken to include sites which had been allocated for development at some time in the future, even if not in the near future), the inspector’s conclusion that the proposal was consistent with the general thrust of the relevant policies in the development plans cannot be faulted.[27]Ground 2. Having found that there was insufficient evidence to show that the gap between the number of homes likely to become available in the five years between 2009 and 2014 and the number of homes required would be closed, the inspector said (in para. 15 of the decision letter):
“Where local planning authorities cannot demonstrate an up-to-date 5 year supply of deliverable sites, PPS3 requires that they should consider favourably planning applications for housing.”
That is an accurate summary of para. 71 of PPS3 so far as it goes, but it is said that it does not go far enough, because the criticism of the inspector is that he ignored the concluding words of para. 71, which were that the favourable consideration of planning applications for housing had to have “regard to the policies in this PPS including the considerations in paragraph 69”. The considerations in para. 69 included the effective and efficient use of land and the spatial vision for the area. These considerations required the inspector to have regard (a) to the risk that granting planning permission for the site at Yeadon might compromise the regeneration of the urban areas of Leeds and (b) to the inconsistency of residential development in Yeadon with the spatial vision for the area which required the focus for residential development to be in other locations. The criticism of the inspector is that he ignored these considerations, and allowed the insufficient number of sites which were suitable for residential development to be determinative of the appeal.[28]I cannot go along with this argument at all. In the same way that the requirement on the inspector to consider planning appeals for housing in certain circumstances “favourably” did not mean that he had to approve such applications, so too did the obligation on him to have “regard” to other considerations not mean that those considerations should be decisive. It was a matter of balance and planning judgment for the inspector. Moreover, since the language of the decision letter tracked the language of para. 71 of PPS3, it is unlikely that the inspector ignored the concluding words of para. 71. Indeed, he considered the very things which the Council says para. 69 of PPS3 required him to consider. He considered whether the development of the site at Yeadon would undermine the regeneration of the urban areas of Leeds in paras. 20-24 of the decision letter. And he considered the consistency of the development of the site with the requirement that the focus in the RSS for residential development should be on other locations in the context of whether there were a sufficient number of sites in those locations to meet the need for housing which the RSS had identified. It is not correct to say that the inspector ignored these considerations.[29]Ground 3. Whereas grounds 1 and 2 concentrated on the inspector’s supposed failure to determine the appeal in accordance with the RSS and PPS3 respectively, ground 3 relates to the inspector’s supposed failure to determine the appeal in accordance with the UDP. It will be recalled that policy H3 of the UDP permitted sites in phase 2 such as Yeadon to be released early only if the “existing housing land supply [was] demonstrably short”. Para. 7.2.10 of the supporting text identified the mechanism for determining whether the supply was demonstrably short. If the Council’s grounds of challenge and Mr White’s skeleton argument are anything to go by, it looks as if the criticism of the inspector initially was that he did not determine whether the supply was demonstrably short by applying the test set out in para. 7.2.10. However, when Mr White developed the argument orally, it became apparent that the Council’s argument was much more refined than that.[30]The shift in the argument was the result of the inspector’s finding in para. 16 of the decision letter that the test in para. 7.2.10 of the UDP for determining whether the supply of suitable land for housing was demonstrably short had been superseded by PPS3 and the RSS. That was the conclusion which the inspector who had presided over the inquiry into the proposed development at Oulton and Rothwell had reached, and the inspector in the present case agreed with that conclusion. Critically, the Council accepts that this conclusion was a rational one, and if the Council is to maintain this ground of challenge, it is left with having to rely on the passage in para. 19 of the decision letter in which the inspector said that the release of the site at Yeadon now would be consistent with, amongst other policies, policy H3 of the UDP. The proposed development of the site could not be consistent with policy H3 of the UDP because it was common ground that if the supply of suitable land for housing had to be assessed in accordance with the formula in para. 7.2.10, the supply would not be demonstrably short. The inspector must therefore have misunderstood policy H3 for him to say that the release of the site would be consistent with it.[31]Once again, I cannot go along with this argument at all. To the extent that the relevant part of policy H3 of the UDP was that phase 2 sites would only be released when and if the supply of suitable land for housing was demonstrably short, the release of the site at Yeadon was consistent with that policy because the supply of suitable land for housing was demonstrably short. The fact that it was found to be demonstrably short by a mechanism which differed from that in the UDP (because a different mechanism had emerged from PPS3 and the RSS) did not mean that its release was not consistent with policy H3.[32]Ground 4. Ground 4 challenges the inspector’s conclusion that the Council had not demonstrated that there would be an adequate supply of land suitable for housing over the five years from 2009 to 2014. That conclusion comprised two components. The first was what the anticipated demand for homes in Leeds over the period would be, i.e. the number of new homes required to meet the city’s housing needs over those five years. The second was what the anticipated supply of new homes in Leeds over the period would be, i.e. the number of new homes which were likely to become available over those five years having regard to the supply of land suitable for residential development. Ground 4 challenges the inspector’s findings on both of those components.[33]It will be recalled that the inspector concluded that the number of new homes required to meet Leeds’ housing needs for 2009 to 2014 was 20,570 homes, based on the requirement in Table12.1 of the RSS of a net addition of 4,300 homes to the housing stock every year (i.e. 4,300 x 5 = 21,500 homes), adjusted to 20,570 homes to reflect previous surpluses. That conclusion of the inspector is criticised on two grounds. First, the figure of 4,300 in Table 12.1 of the RSS represented the net annual additions to the housing stock for the whole of the period from 2008 to 2026. Provided that the housing stock was increased by 77,400 homes (i.e. 4,300 homes a year over the 18 years between 2008 and 2026) over the whole of the period, it did not matter if during the early years an average of 4,300 homes was not achieved. That was the effect of Table12.2 of the RSS which identified Leeds as one of the areas where the rate at which the demand for housing was anticipated to grow was likely to increase over the period from 2008 to 2026. The inspector’s error was therefore in requiring an average of 4,300 homes a year over the whole period to be treated as the requirement for each year.[34]Secondly, whatever Table 12.1 of the RSS had provided for, the local area agreement which the Council had reached with the Department had required the Council to add only 17,600 new homes to the housing stock over those five years. Indeed, in an exchange of e-mails in November 2008, the Department had confirmed to the Council that the Council could use the figures in the local area agreement “for land supply purposes”. Despite that, the inspector concluded that since “that advice” had not been “subject to any formal process, including consultation, examination and approval”, it could not “supersede or amend” the requirements of the RSS. The inspector’s error, so it is said, was to think that the agreement which the Council and the Department had reached superseded or amended the requirements of the RSS. It did not. Its effect was merely to confirm that an addition of 17,600 homes to the housing stock between 2009 and 2014 would not be regarded as a failure to reach a target which related to an average number of new homes over a much longer period.[35]To evaluate these arguments, it is necessary to identify what Tables12.1 and12.2 in the RSS were intended to illustrate. Table 12.1 was intended to give effect to the requirement in para. 34 of PPS3 for the RSS to identify the demand for housing for the region for a sufficient period to enable local planning authorities in the region to plan for housing over a period of at least 15 years. That demand was to be “broadly illustrated in a housing delivery trajectory”. Figure 12.2 in the RSS showed that the trajectory was a constant 22,260 new homes for the whole of the region every year, even though Table 12.2 gave what the supporting text at para. 12.6 called “summary guidance on how growth rates may vary in different parts of the region from 2008 onwards”.[36]It was not being said on behalf of the Secretary of State or Libra that this shows that local variations in the rate of growth in the demand for new homes could not be reflected in how local planning authorities in the region planned to meet that demand in their district. Moreover, undue weight should not be given to the supporting text for Table 12.1, which said that figures for annual average net additions to the housing stock for 2008 onwards reflected the higher levels of growth “that now need to be planned for” (emphasis supplied). This did not mean that new homes needed in, say, years 6-10 or 11-15 in the 15 year cycle referred to in paras. 55-57 of PPS3 should be provided in the first five years. All it was saying was that the growth would have to be planned for.[37]The critical point taken by Mr Hereward Phillpot for the Secretary of State is that Table 12.2 was not intended to provide an alternative requirement to the figures set out in Table12.1 depending on whether the demand for new homes in a particular area within the region was likely to increase over the period between 2008 and 2026, or whether it was likely to remain constant over the period, or whether it was likely to decline over the period. The growth rates in Table12.2 were said in para. 12.6 of the supporting text to be “indicative only, and intended to provide a reference point for future monitoring”, i.e. to assist in monitoring whether sufficient land was being released for new homes.[38]I agree that Table 12.2 did not provide an alternative requirement to the figures set out in Table 12.1, but that still begs the question about what the figures in Table12.1 required. It is true that they did not mandate a particular number of new homes in the first five years of the period from 2008 to 2026. They only mandated an average of 4,300 new homes a year over the whole period. But the thinking behind that is revealed in the amendments which the Secretary of State proposed for Table 12.1. Originally, it had three periods (2004-2011, 2011-2016 and 2016-2021). Those were changed to two periods (2004-2008 and 2008-2026). For the period 2008-2026, 2026 was selected as the end of the period because the period had to be at least 15 years (see para. 34 of PPS3), but the significant point for present purposes is that the original draft had a higher figure for the period 2011-2016, and that higher figure was brought forward to 2008 because it was “not considered appropriate to delay the introduction of higher figures to 2011 as evidence suggests that the need for them exists now” (emphasis supplied). So although Table 12.1 only mandated an average of 4,300 new homes a year over the whole period, that was because the need for 4,300 new homes already existed. Where, then, does Table12.2 fit in? The document recording the amendments to the RSS made that clear. Table 12.2 was added to the RSS “to give a very broad indication of how timing may vary over the period 2008-2026 but this is not binding”.[39]The amendments which the Secretary of State proposed to Table 12.1, and the reasons for them, were not referred to by the inspector in the decision letter. It may be that they were not brought to his attention: neither the Council’s nor Libra’s statements for the purposes of the appeal referred to them. So what the inspector had to do was to decide whether the number of new homes in fact needed in the years 2009-2014 could be met by the number of new homes likely to become available over those five years. The difficulty for the inspector was that no evidence was presented to him of the actual amount by which the demand for new homes during the period 2009-2014 would be less than 4,300 new homes a year. As he said in para. 10 of the decision letter:
“Table 12.2 does not quantify either the degree of below average performance for delivery or a timescale in which growth to a higher rate should be achieved.”
If he did not know that the draft RSS had been amended because the need for new homes meant that higher figures for 2011-2016 had had to be brought forward, the only thing he had to go on was the local agreement which the Council contended identified the demand for those five years as amounting to only 17,590 new homes. It is therefore to that agreement which I now turn.[40]It is important to remember what the local area agreement was for. It was prepared by the Council and submitted to the Secretary of State pursuant to section 106 of the Local Government and Public Involvement in Health Act 2007, and specified the local improvement targets for the economic, social and environmental well-being of the Council’s area where the exercise by the Council of any of its functions could contribute to the attainment of those targets. The targets which it contained for the number of new homes to be added to the housing stock represented what was needed in terms of promoting the Sustainable Community Strategy, since a local area agreement was described in para. 1.3 of Planning Policy Statement 12 as “a key delivery mechanism for the SCS”. The important point is that it did not form part of the local development plan, and it did not contain or determine regional or local planning strategy. What the RSS identified for planning purposes as the demand for new homes over a particular period was unaffected by what the local area agreement identified for economic, social and environmental purposes as the number of new homes which ought to be provided over that period.[41]The Department’s e-mail was not inconsistent with that. The e-mail did not say that the figures in the local area agreement could be used for the calculation of “housing land requirements and supply” (which is what Mr White’s skeleton argument said). Although it talked of “the LAA target”, it said that the target could be used “for land supply purposes”. The Department was therefore not saying that the figures in the local area agreement could be used by way of substitution for the figure of 4,300 in Table 12.1 of the RSS. Nor was it saying that in the early years of the period between 2008 and 2026 the figures in the local area agreement could be used instead of the figure of 4,300, provided that the shortfall was made up later on, because that would have been inconsistent with the explanation for the amendments to the equivalent of Table 12.1 in the draft RSS. The Department was simply saying that the figures in the local area agreement could be used for the purpose of assessing the performance of the Council in the provision of new homes against the targets in the RSS. For all these reasons, I do not think that the inspector erred in his conclusion about the number of new homes which the RSS said were required to meet Leeds’ housing needs over the period 2009-2014.[42]From the number of new homes required to meet Leeds’ housing needs for the period 2009-2014, I turn to the number of new homes which were likely to become available during those five years. It will be recalled that the Council’s case at the hearing before the inspector was that “the deliverable supply” of new homes was 17,590. That compared with Libra’s case, which was that the deliverable supply of new homes was only 8,520. The criticism of the inspector is that he did not make any finding of what the deliverable supply of new homes really was. He merely contented himself with finding that “insufficient evidence had been presented … to demonstrate that the identified gap in the 5 year land supply would be closed either to the LAA/managed target [i.e. the 17,600 new homes agreed between the Council and the Department in the local area agreement] or to the significantly higher RSS requirement [i.e. the 21,500 new homes on the basis of 4,300 new homes a year for 5 years].” If, for example, the inspector had found the shortfall between the demand and the supply to be a relatively modest one, he may well have concluded that it would have been inappropriate for the site at Yeadon to be released for development then. Instead of spelling out what the shortfall between the demand and the supply was, the inspector had simply adopted the conclusion reached by the inspector in the Oulton and Rothwell inquiry – a conclusion which was reached on different evidence.[43]I can deal with this argument shortly. The inspector was entitled to take the decision of the inspector in the Oulton and Rothwell inquiry into account. It was a material consideration which he could not have ignored. But it was no more than a material consideration. The weight which he attached to it was a matter for the inspector. It was for him to decide how persuasive were the reasons which the previous inspector had given for his conclusion. The inspector must have regarded those reasons as compelling. It is not suggested that he was not entitled to do so.[44]I acknowledge that the inspector in the present case did not identify the number of new homes which were likely to become available in the five years from 2009 to 2014. But he did not have to. All he had to decide was whether the number of new homes likely to become available in those five years was likely to meet the anticipated demand, and if not, whether that mismatch was likely to be significant. He found that it was. He did not spell out his reasons for that conclusion, but it is plain that he was following the line of reasoning which caused the inspector in the Oulton and Rothwell inquiry to reach the decision which he did. That was an entirely legitimate approach. For these reasons, it cannot be said that the inspector erred in his conclusion that the number of new homes which were likely to become available over the period was significantly less than were needed to meet the demand.[45]Ground 5. Ground 5 relates to one of the conditions which the inspector imposed on the grant of outline planning permission. It concerned affordable housing. It reads as follows:
“The development shall not begin until a scheme for the provision of affordable housing as part of the development has been submitted to and approved in writing by the local planning authority. The affordable housing shall be provided in accordance with the approved scheme and shall meet the definition of affordable housing in Annex B of PPS3 or any future guidance that replaces it.”
It then identified the various topics which the scheme had to include. It was in the form of a model condition relating to affordable housing approved by the Planning Inspectorate. Indeed, it was a condition which the Council itself had suggested if the inspector had been minded to allow Libra’s appeal and grant outline planning permission. However, at the hearing of the appeal, the Council withdrew its proposal that the grant of outline planning permission be subject to such a condition because it had been advised – on the basis of recent guidance from the Planning Inspectorate – that such a condition was no longer permissible.[46]The use of conditions to overcome planning objections is well established. Circular 11/95 issued by the Department of the Environment and the Welsh Office spoke in para. 2 of the ability of conditions to “enable many development proposals to proceed when it would otherwise have been necessary to refuse planning permission”. A condition relating to affordable housing was an example of that. Para. 97 of the circular said:
“The courts have held that the community’s need for a mix of housing types – including affordable housing – is capable of being a material planning consideration. It follows that there may be circumstances in which it will be acceptable to use conditions to ensure that some of the housing built is occupied only by people falling within particular categories of need. Such conditions would normally only be necessary where a different planning decision might have been taken if the proposed development did not provide for affordable housing and should make clear the nature of the restriction by referring to criteria set out in the relevant local plan policy.”
The circular acknowledged in para. 12 that it may be possible “… to overcome a planning objection to a development proposal equally well by imposing a condition on the planning permission or by entering into a planning obligation under section 106 of the [1990] Act. The Secretaries of State consider that in such cases the local planning authority should impose a condition rather than seek to deal with the matter by means of a planning obligation.” Para. 13 went on to say:
“Where conditions are imposed on a planning permission they should not be duplicated by a planning obligation. Permission cannot be granted subject to a condition that the applicant enters into a planning obligation under section 106 of the [1990] Act or an agreement under other powers.”
[47]It is against that background that the recent guidance from the Planning Inspectorate has to be considered. The guidance was given as a result of the Secretary of State’s decision in October 2007 about the appropriateness of a condition in one of five recovered appeals. It is a little difficult to understand the Inspectorate’s process of reasoning because the actual condition does not appear in the Secretary of State’s decision: the condition which the Secretary of State purported to consider was condition 22 in appeal 3, but the list of conditions imposed in appeal 3 contained only 21 conditions! Having said that, apart from the condition’s lack of precision (which cannot be said to be a valid criticism of the condition imposed in the present case), the reason why the Secretary of State regarded it as unacceptable was because(a) in its original formulation it was contrary to the guidance in para. 13 of Circular 11/95, and(b) in its reformulation by the inspector, it referred to a scheme for the provision of various benefits, whereas the Secretary of State thought it unlikely that a robust scheme could be formulated without requiring payments to be made.[48]In view of this decision, the guidance from the Inspectorate since 29 July 2009 has been as follows:
“In the light of the Secretary of State’s comments we have advised Inspectors that such a condition should no longer be used. If a proposed development is only acceptable if a financial contribution is made towards the provision of infrastructure and there is no completed and satisfactory obligation to secure payment then the only course of action may be to dismiss the appeal. However, this does not mean that a condition should never be used as an alternative to a missing or unsatisfactory obligation so long as it meets the tests in DoE Circular 11/95.”
The reference to “such a condition” is a reference to a condition on the following lines which the inspectors had previously been told they could use:
“No development shall begin until the details of a scheme for the provision of [educational] [recreational] [community services] infrastructure to meet the needs of the development [in accordance with Structure and Local Plan policies] has been submitted to and approved in writing by the LPA. The scheme shall include a timetable for the provision to be made and shall be carried out in accordance with the approved details.”
The Council’s case is that the condition relating to affordable housing which the inspector imposed was of the same kind as the condition which the Inspectorate now advises inspectors should no longer be used. Its point, in short, is that a financial contribution was required from Libra if it was to provide affordable housing on the site, and that payment could only have been secured by Libra entering into an obligation under section 106.[49]I do not agree. The Council’s argument depends on it establishing that a condition on the grant of planning permission, as opposed to the entering of an obligation, relating to affordable housing of the kind which the inspector imposed is never appropriate. There is no basis whatever for that stance. Apart from the fact that it would negate the effect of para. 97 of Circular 11/95, the Inspectorate was still advising inspectors in October 2009 that they could use a condition for affordable housing in the very form which the inspector used in the present case.[50]But leaving that aside, the condition which the Secretary of State decided was not acceptable in the October 2007 determination looks as if it was far removed from a condition for affordable housing. In any event, there is no basis for thinking either that(a) the condition amounted to a requirement on Libra to enter a planning obligation under section 106 of the Act (which would have been contrary to para. 13 of Circular 11/95), or that(b) the scheme which the inspector in the present case required to be approved by the Council would require the payment of money: its real effect would only be to reduce Libra’s profits. Nor was this one of those cases in which the developer had asserted that affordable housing could not be provided as part of the development, and therefore a financial contribution had to be made to provide affordable housing elsewhere.[51]For all these reasons, it cannot be said that the inspector erred in law when he imposed the condition about affordable housing which he did. In the circumstances, it is unnecessary to consider Libra’s alternative case that had it been necessary to do so, it would have been content to secure affordable housing by a suitably worded obligation under section 106. However, I should record three things. First, the draft of such an obligation was included in additional evidence placed before me. Secondly, to the extent that the Council was not content with the split of 70% of the affordable housing being intermediate and 30% being social rented housing, Libra is content to go along with the Council’s suggested split of 50% for each, even though the inspector’s own conclusion was a split of 70% being intermediate and 30% being social rented housing. Thirdly, I do not agree with the Council that clause 1.11 of the draft shows that the effect of the condition imposed by the inspector required Libra to make a financial contribution for affordable housing. It merely dealt with what Libra had to pay in the event of any of the affordable homes not being taken up.[52]Ground 6. Ground 6 relates to greenspace, both on-site and off-site. It will be recalled that Libra’s application was for outline planning permission only, with only the means of access to the site to be the subject of detailed consideration. Consistently with that approach, the Council had not cited the lack of greenspace in the proposal as one of the reasons for refusing outline planning permission, and the Council’s statement for the hearing before the inspector did not address the issue of greenspace at all. It merely sought an appropriate condition relating to greenspace in the event of outline planning permission being granted. Indeed, that condition related to off-site greenspace only. However, on the day of the hearing before the inspector, the Council changed its position. It argued for the first time that Libra’s failure to make adequate provision for greenspace was contrary to the UDP and justified the refusal of outline planning permission. Although the argument now relates to both off-site and on-site greenspace, it is unclear whether the argument which the inspector had to address related to on-site greenspace as well as off-site greenspace. What can be said is that the policies relating to greenspace in the UDP were policies N2-N4.[53]The inspector addressed the argument relating to off-site greenspace in para. 31 of the decision letter. He said:
“In respect of off-site greenspace, whether a proposal satisfies the requirements of the UDP can only be established when a detailed layout and confirmed dwellings numbers are available. A reserved matters application would risk refusal if the proposal failed to comply with the Council’s greenspace Policies N2-N4 in the UDP. I am satisfied therefore that the proposed condition can be omitted at this stage of the outline application with further consideration necessary at reserved matters stage.”
That reasoning is criticised by the Council on two grounds. First, it did not address the requirement for on-site greenspace, and it ignored the requirements of the UDP which are said to have specifically identified how the requirement for on-site greenspace should be assessed at the outline application stage. Secondly, it was unlawful to leave the issue of greenspace to the stage at which reserved matters were considered. The appropriate provision for, and the location of, off-site greenspace fell outside the definition of “reserved matters” in Art. 2(2) of the Town and Country Planning (General Development Procedure) Order 1995. Accordingly, the Council would be acting beyond its powers if it refused to approve a reserved matter on the ground that the developer had failed to provide for off-site greenspace.[54]I cannot go along with either of these criticisms of the inspector. The passage in the UDP which showed how the requirement of on-site greenspace should be assessed at the outline application stage was in the supporting text for policy N4 at para. 5.2.17. The text read:
“In considering outline applications, where the number of dwellings is not known, 10% of the total site area is the minimum greenspace provision (i.e. at an average density of 25 dwellings/hectare, 50 dwellings equals 2 ha, 10% of which would equal 0.2 ha). For schemes below 50 dwellings, provision will need to be considered on its merits.”
This was a scheme below 50 dwellings, and accordingly the amount of greenspace to be provided was to be considered “on its merits”, which I take to mean in the light of the features of the development as a whole. Those features would not be known until a reserved matter such as layout had been decided. Assuming, therefore, that on-site greenspace was an issue which the inspector was asked to address, it is entirely understandable that he did not come to any view on the issue. That disposes of the first criticism of the inspector’s reasoning.[55]Art. 2(2) of the 1995 Order defined “reserved matters” in relation to an application for outline planning permission as any of the following matters in respect of which details were not given in the application: access, appearance, landscaping, layout and scale. Layout must include the amount of greenspace to be provided since “layout” is itself defined in Art. 2(2) of the 1995 Order as “the way in which buildings, roofs and open spaces within the development are provided, situated and orientated in relation to each other and to buildings and spaces outside the development”. That disposes of the second criticism of the inspector’s reasoning.[56]Finally, the inspector is criticised for granting outline planning permission even though Libra “had failed to provide a legal obligation securing a financial contribution towards the provision of off-site and on-site green space”. That was a reference to policies N4.ii and N4.iii of the UDP, which provided:
“ii. Local recreation areas: The Council may seek planning obligations to secure additional or improved greenspace on-site, or within the locality, in order to address the needs of residents of the proposed development. This may be by direct provision of land or by commuted payments. Obligations are most likely to be sought where no greenspace protected under policy N1 is accessible to the site within the distances identified in policy N2 or where greenspace in the locality is of poor quality through absence of facilities or over-use. The Council may also seek planning obligations for the maintenance of such greenspace where the space is principally of benefit to residents of the new development. iii. Neighbourhood/district parks: N4ii will apply but obligations will not be sought regarding maintenance, except where a development is of a size to justify the on-site provision of N2.3 greenspace.”
These policies related to off-site greenspace. Financial contributions in lieu of on-site greenspace were dealt with in para. 5.2.17 of the supporting text as follows:
“On smaller sites where open areas may lead to amenity problems, a contribution may instead be sought to provide safe and secure provision close by, perhaps via additional or improvements to nearby or adjacent greenspace.”
As for the level of financial contribution which may be sought, para. 5.2.18 of the supporting text said that guidance would be available from the Council as a basis for negotiation.[57]The answer to this criticism of the inspector is that the need for a financial contribution, and if one is required what its amount should be, is dependent on the level and quality of the off-site greenspace in the locality, and with smaller developments, the extent to which on-site greenspace is to be provided. The latter could only be decided when the layout of the site had been considered, and there was no evidence before the inspector of the former. There was therefore no proper basis on which he could have refused planning permission because of the absence of a financial contribution from Libra. In any event – although it is not germane to my conclusion – I note that on Libra’s behalf it is said that Libra “has been able to conclude and agree a figure for off-site greenspace with the [Council], in the event that all greenspace was not provided on-site”. The Council has not sought to challenge that assertion.

Conclusion

[58]For these reasons, the Council’s application questioning the validity of the inspector’s decision to grant Libra outline planning permission must be dismissed. I have reached that conclusion without having had to engage in the debate – discussed in the written submissions lodged following the hearing – about the correct approach to the interpretation of planning policy. It has not been necessary to do that in the light of the conclusions I have reached on the criticisms levelled at the inspector.[59]I wish to spare the parties the time and expense of attending court when this judgment is handed down, and my provisional view is that the Council should pay the Secretary of State’s costs of the application, to be the subject of a detailed assessment if not agreed, but that Libra should bear its own costs (relatively modest though they are), because it would not be appropriate to saddle the Council with two sets of costs when Libra’s case to all intents and purposes mirrored that advanced on behalf of the Secretary of State. If any party wishes me to make any other order relating to costs, they should notify my clerk of that within 14 days of the handing down of this judgment, and I will decide what the appropriate order for costs should be without a hearing on the basis of such written representations as are made. If none of the parties suggest an alternative order for costs within that time, the one which I currently have in mind will take effect. If the Council wishes to apply for permission to appeal, my clerk should be notified of that within 7 days of the handing down of this judgment, and I will consider that question also on the basis of any written representations without a hearing. However, any appellant’s notice will still have to be filed within 21 days of the handing down of this judgment.[60]Finally, I wish to make three comments about the hearing bundles. First, the bundles – admittedly for all three applications – ran to 2,316 pages in eight lever arch files. There was no core bundle. It was therefore necessary for me to create a core bundle as the hearing proceeded, so that the relatively few documents to which I was referred could be gathered together. The absence of a core bundle hampered my preparation of the case as well as making it necessary for counsel’s submissions to be interrupted as I transferred the relevant documents into the core bundle I was creating. Secondly, one of the skeleton arguments did not identify where in the bundles the documents which were referred to could be found. That also hampered my preparation of the case as did the fact that the decision letters in the three applications, of course, did not state where in the hearing bundles the documents to which they referred could be found. It would have been very helpful if the Council’s legal team (since it was the Council which was making the applications) had annotated the decision letters to identify the pages in the hearing bundles so that the documents referred to could be readily located.[61]Thirdly, the structure of the bundles was that each witness statement was followed by the documents exhibited to it. The trouble was that many of the documents were relatively long, and the witnesses exhibited different parts of them. For example, extracts from the RSS were at pages 146-198 and pages 618-623 of the bundle. Similar considerations apply to the UDP. Moreover, this was a case in which it would have been helpful for the exhibits to have been divided up subject by subject – for example, for policy documents (whether national, regional or local) to have been included together. I do not wish to be judgmental, but in summary the preparation of the bundles should not simply be the mechanical reproduction of materials. Some thought should be given to the format which would be of greatest use to the judge.