Harringay Meat Traders Ltd v Secretary of State for Communities and Local Government [2012] EWHC 1744 (Admin)

[2012] EWHC 1744 (Admin)

Case No CO/7785/2011

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 27/06/2012

Before

The Hon. Mr. Justice McCombe

Between

HARRINGAY MEAT TRADERS LIMITEDClaimant

THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendant

(1) LONDON BOROUGH OF HACKNEY andInterested Parties

(2) THE GREATER LONDON AUTHORITYInterested Party

(Transcript of the Handed Down Judgment of

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Thomas Hill QC and Benjamin Tankel (instructed by Trowers & Hamlins) for Claimant

Richard Honey (instructed by Treasury Solicitor) for Defendant

Richard Glover QC (instructed by Eversheds LLP) for Second Interested Party

for The First Interested Party was not represented

Hearing Hearing dates: 31 May and 1 June 2012

(Final written submissions received on 18 June 2012)

Judgment

[1]This is an application by the Claimant, Harringay Meat Traders Limited (“HMT”), under section 21 of the Land Compensation Act 1961 (“the Act”), for an order quashing a decision made on 4 July 2011 by the Defendant, the Secretary of State for Communities and Local Government (“the Minister”). The Minister upheld on appeal a decision of the First Interested Party (“the Council”) made in July 2009, in terms unfavourable to HMT, in respect of a Certificate of Appropriate Alternative Development (“CAAD”) in relation to HMT’s property and land, formerly comprising Unit L, East Cross Centre, Waterden Road, Stratford, London E15 (“the Site”).

[2]The Site had been a part one-storey, part-two storey building occupied for a meat processing, packing and distribution business at ground floor level, with a nightclub/discotheque above. In 2005 the Site was made the subject of a compulsory purchase order as part of the intended development site for the 2012 Olympic Games. Originally, the London Development Agency had responsibility for the acquisition under the CPO but this agency was abolished under the Localism Act 2011, with all relevant rights and liabilities in respect of the CPO being transferred to the Second Interested Party (“the GLA”). As a result of this transfer of responsibilities, by order of Underhill J made on 8 May 2012, the GLA was substituted as the relevant Interested Party in the present proceedings.

[3]On 29 September 2007 HMT had applied to the Council for a CAAD under section 17 of the Act stating whether (on the assumption that the development giving rise to the CPO had been cancelled on “the relevant date”), planning permission would have been granted for the site and, if so, for what classes of development. The specific development in respect of which the CAAD was sought, in its final form, was (quoting the report of the Minister’s Inspector) “for a building up to 15 storeys in height, including up to two levels of basement car parking and a ground floor comprising entrances to upper and lower floors along with refuse and plant areas and commercial space within Use Classes A1, A2, A3, B1, C1, D1 and/or D2. Above this there would be commercial development comprising at least 1950 m² of Class B1 space. Above this there would be either more Class B1, Class C1 (hotel) and/or Class C3 (residential development)…”

[4]The grant or refusal of the CAAD and, if granted its terms, has relevance to the determination of the amount of compensation payable by the acquiring authority (now in this case the GLA) for the acquisition of the Site under the CPO.

[5]On 2 July 2009, the Council granted a CAAD specifying Classes B1 (business), B2 (general industrial development), and B8 (storage and distribution), within the meaning of the Town and Country Planning (Use Classes) Order 1987. In addition, as noted above, HMT had applied for a CAAD to include the following further classes: Classes A1 (Shops), A2 (financial and professional services) A3 (food and drink), C1 (hotels), C3 (residential development), D1 (crèche) and D2 (assembly and leisure). These additional categories were rejected by the Council and on appeal by the Minister, following an inquiry and a report on the matter by an Inspector. The inquiry was held on 11-14 January and 9 February 2011. The Inspector’s Report was dated 22 March 2011. The Defendant’s Decision Letter is dated 6 July 2011 and the present application to the Court was issued on 15 August 2011.

(B) The Law

[6]In proceedings under section 21 of the Act a person aggrieved by a decision of the Minister, may apply to the court, on the ground that the decision is not within the powers of the Act or that the requirements of the Act have not been complied with in relation to it, for an order quashing the decision. That is the application which HMT now makes.

[7]The procedure for the application for and grant of a CAAD is set out in section 17 of the Act. It requires the local planning authority, here the Council, on application made to it to issue a certificate stating its opinion as to the classes of development which would have been appropriate for the application site were it not for the CPO having been made (section 17(4)), i.e. “in the no scheme world”, as it has conveniently come to be known. The certificate may specify conditions and/or whether permission would not have been granted before a future time (section 17(5)). The fact that a class in issue may not be in accordance with the Development Plan is not in itself a reason for treating it as inappropriate (section 17(7)), but, it is submitted by the Minister and by the GLA that, under standard principles, the determination should be made in accordance with that Plan, unless material considerations otherwise indicate (see: section 38(6) of the Planning and Compulsory Purchase Act 2004).

[8]At the inquiry and at the commencement of the hearing before me the relevance of section 38(6) of the 2004 Act to the case appeared to be uncontroversial. However, in a speaking note submitted by Mr Hill QC for HMT, to assist his submissions in reply, this common ground disappeared. In view of this late shift in the argument, on what seemed to me to be an important point of principle and of statutory construction, I directed the parties to provide further written submissions. I return to the point below.

[9]In Fletcher Estates (Harlescott) Ltd. v Secretary of State

[2000] 2 AC 307

in the House of Lords, Lord Hope of Craighead (in a speech with which all others of their lordships agreed) formulated the relevant test in these terms:

“The question which the local planning authority, and in his turn the Secretary of State for the Environment, had to answer in this case was therefore a relatively simple one. It was capable of being determined, on the assumption that the proposal had been cancelled on the relevant date, in the light of the circumstances existing at that date and by application of ordinary planning principles. The question was whether reasons existed for the refusal of planning permission which were quite independent of any scheme for the acquisition of the land for the use for the purposes of the proposed [CPO scheme].”

[10]The relevant date in this case is agreed by all parties to have been 16 November 2005, the date of publication of the CPO.

[11]The Minister has to be satisfied on a balance of probabilities that permission would have been granted for the classes of development applied for and does not have to assess more precisely the chances or prospects of that development happening or of the permission being implemented: Porter v Secretary of State

[1996] 2 EGLR 10

[12]Section 21 provides that the grounds of challenge are that the decision is not within the powers of the Act or that the requirements of the Act have not been satisfied. It is accepted that that is a question of law as to whether the decision has complied with the statutory criteria. Further, there are well understood principles affecting the nature of the court’s scrutiny of a Minister’s decision made in reliance on a planning Inspector’s report. i) The proceedings before the court are not for reviewing the planning merits of a decision: R (Newsmith Stainless Limited.) v Secretary of State

[2001] EWHC 74 (Admin)

. ii) Matters of fact and planning judgment are for the decision-maker: City of Edinburgh v Secretary of State

[1997] 1 WLR 1447

. iii) Decision letters are not to be analysed over-zealously. They must be read in a straightforward manner, recognising that they are addressed to parties well versed in the issues in the case; the decision-maker is only required to deal with substantial points that have been raised and not with every argument, however peripheral. The reasons given can be briefly stated and what is necessary is to enable a reader to understand why the matter was decided as it was and what conclusions were reached on the main issues. (See S. Bucks DC v Porter (No.

(C) The Grounds of Challenge

[13]There are seven grounds of challenge in the present case. i) Fairness. HMT says that it was given no fair opportunity to make representations to the Inspector in respect of his position (as reported by him to the parties at the start of the Inquiry) as Inspector in an earlier case, affecting land in a nearby area. The case had been the subject of a challenge in court: see Rooff Ltd. v Secretary of State

[2011] EWCA Civ 435

. ii) Traffic. HMT argues that the conclusion of the Inspector relating to traffic on the road passing the Site was based on inadequate evidence and was inadequately dealt with during oral evidence. iii) Services and Facilities. It is submitted that the Inspector failed to give adequate reasons in respect of his conclusions on this aspect of the case. iv) Residential use. It is argued that the Inspector reached unjustifiable conclusions on the evidence as to the potential areas for residential development under the Development Plan, in particular with regard to the contents of the additional materials to be found in the Lower Lea Valley Joint Area Action Plan and Opportunity Framework Interim Draft (Hackney) (“JAAP”). v) Bus routes. It is said that the Inspector impermissibly placed reliance on the large modern bus station and the Stratford mainline station which were features of the area under the CPO scheme, but failed to have regard to another bus interchange facility south of the Channel Tunnel Rail Link the creation of which was an obligation under development plans for Stratford International Station and “Stratford City” existing at the relevant date. vi) Classes A1, A3 and D1. The argument is that the Inspector made a flawed decision that A1 and A3 classes had to be confined to “kiosks” subsumed into “broader brush land uses without affecting the fair market value of the land” and that “Small-scale Class A1 and/or A3 may have taken place but were not reasonably foreseeable nor was a Class D1 crèche”. It is submitted that his approach here reflects what was found by the Court of Appeal to have been an erroneous approach by him, in similar circumstances, in the Rooff case. vii) Finally, it is argued that the Inspector adopted an unlawful approach to the issue of permission for a building of more than 6 and less than 15 storeys in height, having regard to the local authority’s Tall Buildings Study indicating that 6-9 storey buildings would be acceptable as part of the regeneration strategy for the area.

[14]I turn to the individual grounds. I will deal first with the “unfairness” complaint raised in Ground 1.

(D) Ground 1

[15]The facts underlying this ground of challenge are these.

[16]The date for the inquiry was fixed for 11 January 2011 and following days. The inquiry had originally been fixed for dates in 2010 but was adjourned because the first Inspector appointed had to withdraw as she had sustained an injury and was unable, for that reason, to continue with the task. On 30 December 2010, the new Inspector, Mr Ian Currie, was substituted.

[17]Mr Currie had previously conducted the inquiry in Rooff’s case which concerned a CPO and CAAD application in respect of a builders’ yard site at Carpenters Road, London E15, not far distant from the Site in this case. In the Rooff case, the Minister had dismissed an appeal from a decision of Newham LBC, refusing a CAAD in respect of residential development. The Minister’s decision was challenged in the High Court under section 21 of the Act on two grounds: first, on the basis that the Inspector’s reasons in an important paragraph were unclear; and secondly, that he had failed to make any finding on the question whether a housing development would or would not have been in accordance with the Development Plan.

[18]The Minister’s decision was upheld in the High Court in a judgment of Blake J delivered on 16 July 2010. It appears that an application for permission to appeal to the Court of Appeal against that decision was lodged on 10 August 2010. On 19 January 2011, while the inquiry in the present case was being conducted, the Court of Appeal granted permission to appeal. The appeal was heard on 4 and 5 April 2011. On 18 April 2011 the appeal was allowed, on the first ground only, and the Minister’s decision was quashed. This was after the delivery of the Inspector’s report (March 2011) and just under two months before the Minister’s decision in the present case (early July 2011).

[19]As matters have turned out, one of the grounds of challenge in this case takes issue with the Inspector’s report on a basis bearing some similarity to the successful “reasons” challenge in the Rooff case.

[20]I have had before me a witness statement from the solicitor acting for the LDA at the Inquiry, dealing with the events at the start of the Inquiry on 11 January 2011, as derived from her notes of the hearing. The evidence is not disputed.

[21]It seems that the Inspector notified the parties that he had presided over two previous appeals relating to applications under the 1961 Act in respect of sites subject to compulsory purchase orders for the 2012 Games, i.e. the Rooff case and one other. He stated that he approached the appeal in this matter afresh but would listen to any submissions that there might be on any allegation of “pre-determination”. The Inspector also told the parties that there had been a High Court challenge in the Rooff case. Mr Glover QC, appearing for the LDA, then stated that there was to be an oral application for permission to appeal to the Court of Appeal on 19 January. It seems that Mr Hill then told the Inspector that: “I think it extremely unlikely that I will make any such submission”.

[22]Mr Hill told me that at this time those advising HMT had a copy of the Inspector’s report in the Rooff case and knew that the challenge to the Minister’s decision had been unsuccessful in the High Court. They did not have a copy of the judgment and did not know of any application to the Court of Appeal until it was mentioned on the day that the Inquiry opened. They had assumed until then that the case was “dead”. I was told that instructions were taken by Mr Hill and no formal objection was taken, then or subsequently, to the Inspector continuing the Inquiry. Nor was an application made for an adjournment of the Inquiry pending a decision in the Court of Appeal in Rooff.

[23]Mr Hill now submits that these circumstances put HMT under undue pressure to allow the inquiry to continue, having assembled its professional team and having incurred substantial costs in so doing, some of which would have been thrown away if the Inquiry were adjourned or if objection was taken to the Inspector’s position. Further, he argues that HMT did not have full information as to the continuing challenge in the Court of Appeal and could not make a proper assessment of any potential ground of objection. He relies upon a short passage in the judgment of Lord Phillips of Worth Matravers CJ (as he then was) in the Court of Appeal in Smith v Kvaerner Cementation Foundations Ltd.

[2007] 1 WLR 370

, 379 as to waiver by a party of a right to raise objections on the grounds of a tribunal’s apparent bias. Lord Phillips said, “The vital requirements are that the party waiving should be aware of all the material facts, of the consequences of the choice open to him, and given a fair opportunity to reach an unpressured decision”. Mr Hill argues that HMT was not aware of all material facts or of the consequences of any choice that might be open, and that it had no fair opportunity to reach a proper decision.

[24]For the Minister, Mr Honey submits that this all presupposes that there was a proper objection to the Inspector’s position in the first place. He submits that there was in fact no such objection that could properly have been raised and that, therefore, there was no objection to be “waived”. He expands upon this submission in paragraphs 23 to 41 of his skeleton argument which need not be repeated here.

[25]It is quite clear that the complaint in this case is not truly one of bias at all. Judges frequently have to make decisions in cases in which they have had to consider previously broadly similar factual or legal circumstances. They are not biased in approach to the later case, even if they have views as to the proper principles to be applied and possibly some experience of not dissimilar factual scenarios. If the judge turns out to have applied a wrong approach in either case his decision is open to appellate challenge.

[26]The real complaint here is that, as events have turned out, the Minister’s decision in Rooff, based upon this Inspector’s report, was quashed on a ground bearing some similarity to one of the grounds of challenge in this case. The application potentially open to HMT, in the light of the new information as to the pending appeal proceedings in the Rooff case, would have been to apply to adjourn the inquiry pending the decision in that case. That application was not made. Further, no submissions were addressed to the Minister after the Court of Appeal’s decision was announced in April 2011. If the Inspector, and thereafter the Minister, has erred in approach then the present proceedings under section 21 of the Act afford a full and proper route of challenge which has now been invoked in an entirely proper way. There has been no prejudice to HMT in any event.

[27]It seems to me, therefore, that there can be no complaint on grounds of unfairness to HMT.

[28]The ground now raised which touches upon the previous report of the Inspector and the decision of the Court of Appeal in Rooff is ground 6 to which I will return in due course. Before proceeding to the other grounds of challenge, however, it is necessary to address the new point of construction of the statutes, referred to in paragraph 8 above, since this colours the parties’ differing approaches to the other issues in this case.

(E) Section 17(7) of the Act and section 38(6) of the 2004 Act

[29]Section 17(7) reads as follows:

“In determining for the purposes of the issue of a certificate under this section, whether planning permission for any particular class of development would have been granted in respect of any land, the local planning authority shall not treat development of that class as development for which planning permission would have been refused by reason only that it would have involved development of the land…otherwise than in accordance with the provisions of the development plan relating thereto”

. Section 38(6) of the 2004 Act is in these terms: “If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise”.

[30]As already noted, in the passage from the speech of Lord Hope in the Fletcher Estates case “the contents of the certificate should be determined by applying ordinary planning principles” and the question for the local planning authority and later the Minister is “capable of being determined…by the application of ordinary planning principles”. Further, in Rooff’s case in the Court of Appeal Carnwath LJ (as he then was) said, “The fact that a class may not be in accordance with the development plan is not in itself a reason for treating it as inappropriate (s17(7)). However, under ordinary principles of planning law, the determination should be made in accordance with the development plan unless material considerations otherwise indicate (…s38(6) [of the 2004 Act])”.

[31]From these statements, the submissions of Mr Honey for the Minister and of Mr Glover QC for the GLA proceed on the basis that the Inspector was correct in the approach in his report in ascertaining the relevant parts of the development plan, seeing whether the proposed classes of use were consistent with it and, if not, deciding whether “material considerations otherwise indicate[d]”. In other words, the decision maker had to decide the question of whether permission would have been granted for the relevant class or classes of development in issue and would do so by applying “normal planning principles” which require an application of s.38(6).

[32]Mr Honey in particular argued that the Inspector had been correct to consider at the outset the planning policy framework on the relevant date to see how the proposed developments accorded with that policy and then to conclude, as he did, that, having carried out that analysis, “…the Secretary of State’s decisions on the various alternative forms of development identified in [HMT’s application] become comparatively straightforward” (paragraph 176 of the Report).

[33]Mr Hill QC now submits, however, that this is a wrong approach on the proper construction of section 38(6) itself. For this purpose, he argues, one must go to the rest of section 38. Section 38(1) says this:

“(1) A reference to the development plan in any enactment mentioned in subsection (7) must be construed in accordance with subsections (2) to (5)”.

(d) the Land Compensation Act 1961…”

[34]So, when section 38(6) refers to “the planning Acts”, it is then necessary to see what that expression means in the 2004 Act. The answer is to be found in section 117 which provides that, “(4) The planning Acts are-(a) the Principal Act;

(b) the listed buildings Act;

(d) the Planning (Consequential Provisions) Act 1990”. That list excludes the Act of 1961. Thus, Mr Hill argues section 38(6) does not apply to matters to be decided under that Act, leaving only section 17(7) of that same Act to be applied. He goes on to submit, “Thus section 38(6) has no application to a CAAD determination pursuant to LCA 1961, although Parliament could plainly have provided otherwise had it chosen to do so. 7. This then resolves the apparent tension between section 38(6) PCA and section 17(7), which provides that conflict with the development plan is an insufficient basis withoutmore to refuse a CAAD application. Section 17(7) places a duty upon the person responsible for determining the CAAD to undertake a more searching analysis than section 38(6). It requires the decision maker to look beyond mere conflict with the provisions of the development plan and identify some real and substantial, practical reason why a CAAD should not be issued on the basis sought, ie “significant and insuperable planning objections to the particular development” (per Carnwath LJ at para.35 in Rooff.)” (a) the Principal Act; (b) the listed buildings Act; (c) the hazardous substances Act; (d) the Planning (Consequential Provisions) Act 1990”.

[35]In my judgment, there is a short answer to this point. Section 38(1) to (5) set out what constitutes “the development plan” where that expression is used in the statutes referred to in Section 38(7), including the 1961 Act. Those subsections identify the documents to be “picked off the shelf” to constitute the development plan. Section 38(6) merely states that where a determination has to be made under the planning Acts and, if in that process regard is to be had to that development plan, the determination has to accord with the plan unless material considerations indicate otherwise. In somewhat convoluted terms section 17(4) of the 1961 Act provides that a CAAD must contain an opinion on what classes of development would have been allowed on an application for planning permission, i.e. an application for permission under “the planning Acts”. Section 17(4) refers in four places to the hypothetical question of whether planning permission would have been granted. Thus, the matter has to be considered in the same way as if an application for such permission had been made, which in turn requires that regard be had to the development plan in the terms specified in Section 38(6) of the 2004 Act.

[36]Turning to section 17(7) of the Act, Mr Honey (in written submissions) argues, by reference to the legislative history, that the subsection is part of the machinery to achieve a certification upon the basis of the “no scheme world”, i.e. ignoring the fact that the development plan may well reflect aspects of the compulsory purchase scheme itself and might thus dictate certification on the basis that the plan (incorporating the scheme) precludes development of the class for which certification is sought. This is undoubtedly the view expressed in paragraph 14 of Appendix P to Circular No. 06/2004: Compulsory Purchase and the Crichel Down Rules whose aim is, “…to help local planning authorities to use their compulsory purchase powers to best effect and, by advising on the application of the correct procedures and statutory or administrative requirements…” The relevant paragraph reads:

“14. Section 17(7) of the 1961 Act provides that a certificate may not be refused for a particular class of development solely on the grounds that it would be contrary to the relevant development plan. The purpose of this provision is to avoid the whole purpose of the certificate system being defeated, where land is allocated in the development plan for the use for which it is being acquired. It follows that the local planning authority (or the Secretary of state as the case may be) must ignore development plan policies with no function beyond the acquisition scheme-for example, policies that earmark land for a road or school. But the decision maker may take account of broader policies-for example, Green Belts and countryside protection policies-if these imply that the classes of alternative development suggested by the applicant or appellant would not have been acceptable in the ‘no scheme world’.”

[37]Section 17(7) is drafted in more general terms than the Circular seems to envisage as its purpose and, for that reason, I would not wish to found my decision on accepting unreservedly Mr Honey’s submission in this respect. In my judgment, the point is decided nonetheless by the requirement, both in section 17(4) itself and on the authority of Lord Hope’s speech in Fletcher Estates, to decide the matter on normal planning principles. Normal planning principles inevitably involve section 38(6) of the 2004 Act. Further, as pointed out by Mr Glover QC in written response to the late submissions of Mr Hill QC on statutory construction, section 70(2) of the Town and Country Planning Act 1990 is also in play. This provides that, “…in dealing with such an application [i.e. for planning permission] the authority shall have regard to the provisions of the development plan, so far as material to the application, and to other material considerations”. Section 38(6) of the 2004 Act has already been recited. Both subsections require the authority to consider not just the development plan but also other material considerations. In a Section 17 case the decision maker is reminded that the development plan is not the “be all and end all”. In my judgment, on its proper construction it means no more than that.

[38]Further, it seems to me quite clear that Carnwath LJ, with his unrivalled experience of this area of the law, was entirely satisfied in Rooff’s case that the certification process under section 17 of the Act required the application of “normal planning principles” and the consequential application of section 38(6) of the 2004 Act. He was clearly fully cognisant of section 17(7) and saw no such tension between that subsection and section 38(6) of the 2004 Act such as Mr Hill would invite me to find. In paragraph 39 of the judgment he quoted section 38(6) and in paragraph 40 spoke of the “statutory presumption” in favour of the development plan imported by that provision. Both section 17(7) and section 38(6) of the 2004 Act enable the decision maker to depart from the requirements of the development plan where appropriate, but only in accordance with “normal planning principles”.

[39]In short, it seems to me that Mr Honey’s approach to these statutory provisions, as supported and supplemented by Mr Glover QC, is the correct one and I reject the notion that “section 38(6) has no application to a CAAD determination pursuant to LCA 1961” as submitted by Mr Hill QC.

[40]Having resolved that question as to the approach to the legislation, I return to the remaining grounds of challenge.

(F) The Inspector’s Report and his Approach to the Issues

[41]It follows from my analysis of the statutory provisions that I accept the broad thrust of Mr Honey’s submissions in defence of the Inspector’s approach to his task in the section of the Report entitled “Conclusions”, paragraphs 155 and following.

[42]The Inspector identified in paragraph 159 of the Report “the three main issues” referred to in paragraph 16 of Appendix P to the 2004 Circular. Those issues were(a) the physical considerations – the state of the land and the area in which it is situated;

(b) the current and reasonably foreseeable planning policies; and

(c) identifying and disregarding the planning consequences of the acquisition scheme and the public purpose for it. His report then contains specific sections dealing with issues (a) and (b), but criticism is levelled against his failure specifically to identify and then to disregard the planning consequences of the acquisition scheme.

[43]In my judgment, this criticism is illusory rather than real. Point (c) (in paragraph 16 of Appendix P) refers to the well known requirement that attention must focus on the “no scheme world”. That requirement was at the forefront of the approaches of the parties before the Inspector. In paragraph 160, immediately after his identification of the three issues, he referred to the Fletcher Estates case and identified the relevant date. The simple planning consequence of the scheme (to be disregarded in the present exercise) was the creation of the Olympic Park. This did not need substantial elaboration. As the Inspector wrote in paragraph 162, “Following on from paragraph 159 (c) above [i.e. issue (c) in paragraph 16 of Appendix P] the planning consequences of acquiring this land for the holding of the 2012 Games have to be disregarded”. It is difficult to know what more needed to be said under this heading, which in any event was not in dispute between the parties.

[44]Under the heading “State of the Land” two specific grounds of challenge (grounds 2 and 3) are raised by HMT and I return to these below.

[45]The Inspector then addresses the planning policy considerations – “main issue” (b) in the Minister’s Circular. In doing so he refers expressly to section 38(6) of the 2004 Act. It is acknowledged that he made an erroneous reference to that section applying to the 1961 Act by virtue of section 38(7)(d). However, for reasons already explained, I do not consider that this feature vitiated his reliance upon section 38(6). Indeed, in paragraph 5.1 of the statement of common ground before the Inspector it was acknowledged that section 38(6) applied. Under this heading there is one ground of challenge (ground 4). Again, I return to this specifically below.

[46]In paragraph 177 of the Report the Inspector concludes that his findings on issues (a) and (b) determined that residential development would have been inappropriate on the Site. In my judgment, if his analysis under those two sections is not impeachable then it was open to him to conclude, as he did, that the conclusions on the various alternative forms of development became “comparatively straightforward”. In the circumstances, I find that the overall approach adopted in the report was a correct one.

[47]I turn to the various further grounds of challenge.

(G) Ground 2

[48]Under this head HMT attacks the Inspector’s finding as to the nature of traffic using Waterden Road which immediately abutted the Site to the east. The passage criticised is this:

“the principal road connecting not only Hackney Wick but much of the Lower Lea Valley regeneration area to the strategic road network. This meant that it carried significant flows of heavy commercial traffic…often at unsocial hours. It is accepted that residential development is frequently to be found alongside busy traffic corridors across much of Inner London. On the other hand, in my professional experience, it is much rarer to find residential accommodation sited alongside routes where a high preponderance of heavy goods vehicles, moving about either very early in the morning and/or late at night, is a noteworthy feature of traffic generation.”

[49]It is quite clear that the Inspector had before him essentially common ground that this road was heavily trafficked at the relevant date and that it connected Hackney Wick and the Lower Lea Valley to the strategic road network. There was traffic, of an inherently unpleasant nature, using the road to and from land to the south and connecting with the A12 trunk road.

[50]The surrounding areas were characterised by warehousing and distribution user. There was evidence of movements of heavy goods vehicles and the operation of the neighbouring bus depot at anti-social hours. The Inspector was, in my judgment, fully entitled to draw common sense conclusions as to the consequences of the nature of the road, its situation and the established nature of neighbouring premises in contributing to the features which he identified. To that extent, he was also entitled to draw upon his own professional judgment as to the consequences of these matters in the context of a proposal for residential development.

[51]In my view, the challenge here seeks to draw the court impermissibly into the planning merits of the decision.

[52]I conclude that the points made by HMT under ground 2 do not give rise to a flaw in the Inspector’s conclusions as to the state of the Site and its surroundings or generally.

(H) Ground 3

[53]The criticism here is that the Inspector recognised that in many areas of London day to day facilities (shops, schools, medical surgeries etc.) exist and that the same was true of this area. However, as he noted in paragraphs 166 and 167 of the Report, the routes to such facilities were hardly pleasant ones, either in this case or in the case of the King’s Yard site to the south of the railway line bounding the East Cross centre within which this Site was situated.

[54]I agree again with Mr Honey’s submissions on this point. HMT’s case at the Inquiry was that planning permission would not have been refused on the grounds of the unavailability of such facilities. However, their existence was not a positive feature weighing in favour of housing in the site, given the other physical features and the planning policies. The point, as Mr Honey argues, was indeed a neutral one.

[55]Mr Hill argues that paragraphs 166 and 167 of the report leaves the important issue of availability of facilities up in the air and that, therefore, adequate reasons for the Inspector’s conclusions have not been supplied. I do not agree. The Inspector had already identified the primary physical features of the site and was merely saying that the availability of standard every day facilities on this Site was no different from that prevailing in many parts of inner London. It was not, therefore, a feature militating in favour of a grant of permission for the additional classes of development.

[56]In my judgment, the challenge on ground 3 must also fail.

(I) Ground 4

[57]This ground attacks the Inspector’s conclusions under the heading of planning policy at the relevant date. The thrust of the challenge is to the Inspector’s conclusions as to the implications of the JAAP. This was not part of the statutory development plan but fell to be considered as a “material consideration” outside the plan.

[58]The document was an interim draft which indicated that in the sub-area (area 4.1(b)) in which the Site was situated could be seen as comprising mixed uses. 10% of the area could be residential and there would be a “green corridor” between the east side of Waterden Road (opposite the Site) and the River Lea. The document also provided that the residential element should be concentrated near to water systems and parks. As the Inspector noted, the JAAP gave no indication as to the siting of the envisaged residential development, other than this.

[59]The Inspector’s conclusion as to what emerged from the JAAP appears in paragraphs 173 to 175 of his report. I believe that it is of some importance to quote these paragraphs in their entirety:

“173. From all of this I conclude that the JAAP gives very helpful site specific guidance as to the range and disposition of uses that the East Cross Centre would have incorporated in the no-scheme world. The primarily employment nature of the site is maintained from its DEA designation in the UDP [169]. Unlike most if not all other Hackney DEAs, the London Plan and SRDF designate this part of Hackney Wick as an SEL in conjunction with other land straddling three London Boroughs, so that the UDP employment land protection here is effectively preserved at the relevant date [170]. 174. On the other hand, the JAAP recognises that there is scope in Area 4.1b for 10% residential development; it does not say explicitly where it should go within this area but identifies Waterden Road as being environmentally depleted and that in strategic terms housing should be concentrated near waterways and parks [172]. Based on this analysis, the message from the local planning guidance to emerge closest to the relevant date, the JAAP, is to my mind reasonably clear and foreseeable at that time. Most of the south-east sector of Hackney Wick (90%) would remain in employment use (Use Classes B1 and B2). 10% of development would be residential but it would be sited next to a waterway, the Hackney Cut, and away from the environmentally substandard Waterden Road. It may be opposite a rather unattractive industrial building (a printing works) on the west side of The Cut [48]. However, the canalised river would act at least as a buffer against the activity in those premises, whereas residential development on the CAAD site could be left isolated cheek-by-jowl with B2 general industrial uses and an unimproved Waterden Road. 175. I am reinforced in this by the phasing scheme set out on page 9 of the JAAP. Getting housing development underway is described there as an intermediate priority but no specific mention is made anywhere of the timing of any Waterden Road environmental improvements. ”

[60]HMT criticises the Inspector’s conclusions by saying that he made a series of assumptions about the Cut site, which he did not make about HMT’s Site, without a fair basis for drawing the distinction. Mr Hill in his skeleton argument points to four features: 1) the Cut site lay opposite an active print works, whereas this Site was to face the envisaged green corridor; 2) the Cut might have provided a barrier to movement, but not to noise, odour and “other amenity concerns”; 3) the Cut site had no sensible access for residential development; and 4) each location anticipated redevelopment alongside and as part of general environmental improvement. In addition, it is argued that the Inspector failed to give proper consideration in this context to the development of “Stratford City” and its landscaped setting.

[61]In my judgment, the challenge under this ground fails properly to recognise the Inspector’s conclusions in their full context. The Inspector noted that in the development plan this Site was in a defined employment area (“DEA”) and in a strategic employment location (“SEL”). The primary employment nature of the area is maintained under the JAAP and the development plan employment land protection “is effectively preserved at the relevant date”. However, the Inspector goes on to note the small percentage of residential development that this draft envisaged in the Site area for the future. He formed his own view as to the likely area for this class of development at the relevant date as being at the Cut, but he was required to consider the planning position at that date with regard to this site; he was not deciding whether residential development would have been permitted at the Cut or to assess the rival claims of the two sites for such development. Importantly, he noted that even this draft document envisaged housing development as only an intermediate priority and that there was no timetable identified for the environmental improvement (or the creation of the “green corridor”) along Waterden Road. Equally, I was directed by Mr Glover QC to evidence before the Inspector that full implementation of the Stratford City proposals was some time into the future: see paragraphs 9.53 and following of the evidence of the LDA’s planning expert. Further, the Inspector clearly had the Stratford City development in mind, as he alluded to it in dealing with additional points on residential development at paragraph 179 of the report.

[62]The task for the Inspector was to assess the prospect for an application for permission for the relevant class of development on this Site at the relevant date. Given the features of the development plan and the uncertainties presented by this additional draft document, in my view, the Inspector cannot be criticised for deciding (as he did at paragraph 177) that, “…analysis of firstly the state of the land and, more importantly, the then emerging forward planning on the relevant date, determines that residential development would be an unacceptable alternative on this land”. This reasoning was supplemented in the Summary of Conclusions, paragraphs 186-7, having considered the additional points, in these terms:

“186. Any form of residential use within a mix of uses would not have been acceptable on the Appeal Site at the relevant date. The Appeal Site was a Defined Employment Area (DEA) in the adopted Unitary Development Plan, as far as section 38(6) of the 2004 Act is concerned. Whilst many Hackney DEAs had lost that status in this rather old Development Plan, the London Plan of 2004, the second limb of the Statutory Development Plan had preserved this status for Hackney Wick by declaring it to be a Strategic Employment Area (SEL). 187. Very specific advice on the south east area of Hackney Wick containing the appeal site (Area 4.1b) was given in the Supplementary Planning Guidance, the JAAP, also of 2004 and therefore from the year before the relevant date. 90% of land in the area was to be developed for employment. The 10% residential of land (according to JAAP’s strategic guidance) was to be concentrated next to water courses i.e. the Hackney Cut in Area 4.1b; in sharp contrast Waterden Road, fronting the appeal site, was said to be in need of environmental improvement and no timetable for these improvements was given. Therefore, residential development was not appropriate and a semi-residential use as an hotel was similarly unacceptable.”

[63]In my view, those conclusions reflected a combination of a correct legal approach to the task with an element of legitimate planning judgment, that latter element not being susceptible to challenge in this court.

(J) Ground 5

[64]Under this heading HMT challenges the Inspector’s conclusions on the basis that he impermissibly had regard to elements of the “scheme world” rather than focussing upon the “no scheme world”. The claimant focuses upon one passage on this aspect of the case which is quoted in paragraph 58 of Mr Hill’s skeleton argument. This reads as follows:

“Two elements of the no scheme world are either in being or currently nearing completion, the Stratford International Station and Stratford City shopping complex. I have no evidence before me to substantiate that with these two no-scheme features in place, the numbers of bus routes operating in the area is going to increase markedly, as surmised by Newham Council in 2005. A far more likely scenario is that existing bus routes will be rerouted to serve new bus facilities in both developments before making for their final destination at the large modern bus station at the south side of Stratford main line railway station. ”

The point is then made that, “The Inspector impermissibly placed reliance on the large modern bus station and Stratford mainline railway station, which are features of the scheme world. By contrast, the Inspector failed to have regard to “a new bus interchange facility south of the Channel Tunnel Rail Link box”, which was an obligation in the s.106 agreement accompanying the planning permission for the Stratford International Station and then Stratford City…”

[65]Leaving aside for the moment the fact that the issue of potential increase in bus services was seen by the Inspector as a subsidiary issue (given his conclusion at the beginning of paragraph 177 of the report), it has to be recognised that in the “no scheme world” this site had a Public Transport Availability Level (“PTAL”) of only 2, even with the presence of the Stratford International Station and the DLR feeder. This was seen to be poor for any location in inner London. The issue was whether the Inspector could be persuaded that this would have been likely to have improved in the “no scheme world” by the provision of extra bus services. The task was obviously a highly speculative one to be decided by the Inspector on the basis of the rival expert evidence and the Inspector’s professional judgment. The case for increased provision appears to have been based upon some forward study work done in 2005 by the London Borough of Newham. The Inspector noted that one of the routes relied upon by HMT’s witness had already been removed from Waterden Road in the “no scheme world”, following closure of Hackney Stadium and he found nothing to substantiate an increase in routes even with the two “no scheme” features of the International Station and Stratford City shopping complex being near to completion.

[66]It seems clear that this question of potential increase in bus routes serving the site in the “no scheme world” was covered by significant evidence from two rival experts. The result is that the Inspector was unpersuaded that bus routes would significantly increase. That was obviously a conclusion open to him having heard that evidence and argument based on it. I agree to an extent, as accepted by Mr Honey in argument before me, that the use of the present and future tenses by the Inspector at the end of paragraph 179 of the report might suggest that he was straying impermissibly into the “scheme world”. However, that was not the thrust of the evidence before him which concentrated on the appropriate question. The evidence adduced by HMT did not persuade him that new routes would have been provided. That seems to me to be a question of planning judgment.

[67]In any event, as is clear from paragraphs 177, 186 and 187 of the report, there were other features that indicated that residential development would have been unacceptable at the Site on the relevant date and that the question of bus routes was a subsidiary matter upon which nonetheless the Inspector had heard evidence and upon which he thought he should state his conclusions.

[68]In my view, the claimant’s fifth ground provides no basis for undermining the decision.

[69]It is convenient to deal with Ground 7 at this stage, before turning to Ground 6 to which different considerations apply.

(K) Ground 7

[70]Under this heading, HMT complains that the Inspector erred in concluding that any building for which permission would have been granted at the relevant date would have been limited to six storeys. It points to the local planning authority’s Tall Buildings Study indicating that “mid-rise” buildings of between 6 and 9 storeys would have been permitted at the relevant date. It is submitted that the Inspector imposed upon HMT a “higher burden of proof than was justified” (paragraph 62 of Mr Hill’s skeleton argument).

[71]Important in this regard was that planning permission had been granted for a six storey building on this Site in June 2004, slightly over a year before the relevant date. The background to this appears from the statement of common ground submitted to the Inspector by the planning witnesses for HMT and the Council. That was summarised in paragraphs 4.1 – 4.3 of the document in the following terms:

“4.1 A planning permission was granted for redevelopment of the Appeal Site in June 2004. The application (submitted by the appellants) was for a 6 storey office building. The application was in outline (LBH ref 2004/0132) and was submitted to LBH on behalf of the Appellants on 20th January 2004 for: “Outline planning application for demolition of existing 2-storey building and erection of a part 5, part 6-storey office building with ancillary car parking provision.” 4.2 LBH officers originally recommended the proposals for refusal. A report was prepared for planning committee on 22nd April 2004 which concluded that: “The scale and bulk of the building is considered excessive in a position close to Waterden Road and would detract from the street scene and townscape in general. In addition the level of parking provision on the site is considered excessive and would encourage car dependency”. 4.3 This report was subsequently withdrawn from committee at the Applicant’s request, and revised plans were prepared in discussion with officers. Correspondence relating to the changes required is at Appendix JW6 (letter from LBH to applicant’s agent dated 23rd April 2004.)”

On the basis of the revised plan, permission was granted for the six storey building. HMT’s expert submitted to the Inspector that, “…it was possible to reach a view in principle as to the broad height that would be acceptable”. He went on to argue that the permission for six storeys was a “starting point” and that there was no suggestion in the contemporaneous documents that permission represented the maximum permissible height. He submitted further that the planning scenario had changed in two respects: the JAAP “with its emphasis on intensification” and the granting of the Stratford City planning permission with tall buildings intended to be clearly in view and the construction of the access road and bridge to the Stratford International Station opposite the Site.

[72]Mr Williams, the planning expert for LDA, gave contrary evidence as to the likelihood of permission being granted for a building taller than six storeys and I was shown paragraphs 8.24 and following of his written proof of evidence. He argued too that the Tall Buildings Study on which reliance was placed was “part of the evidence base for the LDF. Their findings were to be tested through the LDF process and were not approved Hackney policy”.

[73]The Inspector’s findings are relatively short and can usefully be quoted:

“Building up to 15 storeys high 184. This is largely based on the tall building study carried out for Hackney Council and issued in 2005, the proximity of tall buildings at Stratford City and the justification of a landmark building for the new road junction between Waterden Road and the access road to the International Station [53,54]. Paragraph 5.7 of the Tall Building Study describes the Lee Valley opportunity area, because of its proximity to the visually sensitive river corridor, is seen to be suitable for no more than mid-rise buildings [73]. 185. Planning permission was granted in 2004 for an office building up to six-storeys high on the CAAD site. This height seems to have been determined in large part by building heights prevalent on other sub-divisions of the East Cross Centre. Tall buildings had been approved as part of the major new development at Stratford City but this was a new urban form representing the important new transport node of the International Station, the important expansion/improvement of the main-line/underground station and the DLR link between the two, all of which also formed part of the no-scheme world. I do not consider that a new junction between Waterden Road and the access road to the International Station, a fairly unimpressive location in a relatively featureless employment area, warranted any increase in height for development on this site over and above the six storeys approved on the same area of land the year before the relevant date. 188. There was no reason why a building of fifteen stories in height was suitable for this site. A multiple storey building of B1 offices only was likely to be built and in a mid-rise area of the Lower Lea Valley, adjoined by other buildings of a similar height, there was no reason why it should be more than six stories high.”

[74]In my judgment, this is a classic example of the Inspector reaching a view, on the basis of his experience and expertise, in the light of the expert evidence and the arguments. In the end, this was simply a “fact based” conclusion on the evidence presented. As Blake J pointed out at paragraph 11 of his judgment in this court in Rooff the introduction of the concepts of burden of proof was generally unhelpful in this type of case. I do not consider that the Inspector here was applying any impermissible onus upon HMT. He was simply expressing a view on the planning merits of HMT’s submission that permission would have been granted for a building of a height greater than six storeys. On the evidence, he disagreed with that submission. Accordingly, this ground of challenge, in my opinion, must fail.

(K) Ground 6

[75]The ground of challenge raised here is somewhat different in character from that raised in the other planning grounds considered so far. Again it is to be noted that the paragraph of the Inspector’s conclusions is written in the context of his decision that, having analysed the state of the land on the planning policy considerations, the decision on the various alternative forms of development becomes “relatively straightforward” (paragraph 176 again).

[76]The Inspector’s decision in question relates to Classes A1/A2/A3. His decision can usefully be set out in full; it is contained in one paragraph, paragraph 181, which is in these terms:

“181. No real evidence was advanced in support of Class A2 offices. Class A1 and A3 were seen effectively as corner shops/cafes catering for workers in the surrounding area. Paragraph 8 of Appendix P to Circular 06/2004 calls for the certificate system to be operated on broad and commonsense lines, pointing out that a certificate is not a planning permission. If, as seems to be the case, that the proposals are little more than kiosks then they can be subsumed into broader brush land uses without affecting the fair market value of land.”

[77]It is argued that there was no material to support a finding that A1 and A3 uses were to be so confined. On the contrary, the agreed planning conditions in respect of this class of use restricted it to the full extent of the ground floor of some 1000 m². Mr Hill argued that this could easily accommodate a small local supermarket of the type now familiar in many areas where employment is the primary characteristic, enabling workers to do shopping in the gaps of a working day.

[78]One can see that the Inspector placed great reliance on his understanding of paragraph 8 of the Circular, already referred to in another context. That paragraph reads:

“8. The First Secretary of State (‘the Secretary of State’) considers it important as far as possible that the certificate system should be operated on broad and common-sense lines; it should be borne in mind that a certificate is not a planning permission but a statement to be used in ascertaining the fair market value of land. An example of how the system could work might be where land is allocated in the development plan as part of an open space or a site for a school, and is being acquired for that or a similar purpose. If there had been no question of public acquisition, the owner might have expected to be able to sell it with planning permission for some other form or forms of development. The purpose of the certificate is to state what, if any, are those other forms of development. In determining this question, the Secretary of State would expect the local planning authority to exercise its planning judgement, on the basis of the absence of the scheme, taking into account those factors which would normally apply to consideration of planning applications eg. the character of the development in the surrounding area, any general policy of the development plan, and national planning policy along with other relevant considerations where the site raises more complex issues which it would be unreasonable to disregard. Only those forms of development which for some reason or other are inappropriate should be excluded. Local planning authorities will note from section 17(7) that their certificate can be at variance with the use shown by the development plan for the particular site.”

[79]In the Rooff case in the Court of Appeal the Court was concerned with a challenge to a refusal of a CAAD in respect of residential development. The present inspector, in dealing with characteristics of the appeal site had said this (at paragraph 172 of his report in that case), “…the advice in paragraph 8 of Appendix P to Circular 06/2004 is that general policies of the development should be followed so that small pockets of residential provision associated with office development can be disregarded for the purposes of issuing a certificate…”.

[80]In challenging the Inspector’s approach in that case, counsel submitted that this passage in the report was (quoting Carnwath LJ’s summary of the submission in paragraph 27 of the judgment) “…both obscure and unsupported by anything in the Circular. Far from saying that pockets of residential development can be disregarded, the Circular emphasises that appropriate forms of development should be included in the certificate…”. In dealing with the relevant passage of the Inspector’s report in that case, in paragraphs 34 and 35 of the judgment, Carnwath LJ said, “34. ….His reasons…are not those put forward by the planning authority, nor are they based on considerations applicable to an ordinary planning application. Rather they appear to be based upon his understanding of the Secretary of State’s guidance in relation to the section 17 procedure: first, that it allows him to disregard the residential element of such a scheme as a “small pocket” not relevant to the general policies on which the section 17 consideration is based; secondly, that it enables him to disregard proposals which “deliberately ignore” the policy framework 35. I find on any view that reasoning difficult to understand or support. In the first place, it is unclear what is meant by the reference to “small pockets of residential provision”. If he is suggesting that a housing element on the appeal site can be disregarded for section 17 purposes because it is small in relation to the area to which the general policies apply, that is clearly wrong. The certificate should specify any uses appropriate for the appeal site, regardless of their scale in relation to the wider area. Whether or not the general policies are designed to deal with “small pockets” of individual uses, what matters is whether residential use would be acceptable as a significant element of the development of this site. Similarly, the reference to “current and foreseeable policies” in paragraph 16 is nothing to the point. As the earlier parts of the appendix make clear that is not intended to rule out consideration of the planning merits of an individual proposal, even if it may depart from the approved policies. The question is whether, notwithstanding the lack of specific support in the policy documents, there are significant and insuperable planning objections to the particular development.” As a result, the Court upheld the challenge to this and other parts of the Inspector’s reasoning and quashed the certificate.

[81]Mr Hill QC submits that in the present case the Inspector has repeated the same error and, in addition, has imported irrelevant considerations of “value” into his decision.

[82]For the Minister, Mr Honey submitted that the Inspector’s conclusions as to acceptable uses on the site were ones of expert planning judgment for the Inspector and are not amenable to challenge in the courts. He notes that HMT’s case at the Inquiry was that the acceptable use was for a ground floor convenience store and café serving a wider employment area. He submits that HMT’s planning expert was suggesting limited Class A use, “newsagents, convenience store, café, etc.” Mr Honey submits that the conclusion was that freestanding A and D Class uses were not a class of development which would form a significant element of a development permitted on the site: c.f. paragraph 35 of Carnwath LJ’s judgment quoted above.

[83]Mr Honey added five additional points: 1) The Inspector’s reference to paragraph 8 of the Circular accurately reflects what the circular says; 2) Section 17 speaks about classes of development; 3) This does not mean classes within the Use Classes order, but types or forms of development; 4) this means a very general classification of the development: see Sutton v Secretary of State

(1985) 50 P & CR 147

, 153 per McCullough J; and 5) “what matters is whether [the use in question] would be acceptable as a significant element of the development of this site”: per Carnwath LJ Loc. Cit. He contrasted this with the position in the Rooff case where the Inspector felt free to disregard housing because it was small in relation to the area to which the general planning policies applied.

[84]Mr Glover QC for the GLA adds that the issue in the Rooff case was whether the reasons given by the Inspector reached the standard of clarity required by the decision in the South Bucks case (supra). The adequacy of the reasons had to be measured by the facts and issues in that case. He cautions against a wholesale application of the same reasoning in the present matter on quite different facts. Mr Honey submits that the error in Rooff went to “reasons not substance” and that, while the error alleged here may appear to be similar to that in Rooff, it is not. He argues that while the Inspector refers to matters of “value” he was not relying upon them for his conclusions.

[85]I note all these points and some others advanced by Mr Honey and Mr Glover on this issue. However, it seems to me that they try to read too much into this very short paragraph in the Inspector’s report. It seems clear to me that he was adopting the same erroneous approach to the meaning of paragraph 8 of Appendix P as in the earlier case. That interpretation was wrong for the reasons identified by Carnwath LJ in paragraphs 34 and 35 of his judgment. Moreover, it seems to me that paragraph 8 of the Circular simply does not bear the meaning attributed to it by the Inspector-a point made by Mr Hobson QC for the successful appellant in Rooff: see paragraph 27 of the judgment. Having adopted that approach as his foundation for the conclusion I find it difficult to see how that conclusion can be saved simply by reference to the Inspector’s impression as to what sort of shop or food facility might be made available in fact. The “convenience store” envisaged in the evidence, and the agreed condition, could clearly include the type of small supermarket of the type mentioned in submissions by Mr Hill. It seems, therefore, that such a use could have been acceptable as a significant element in the development of this Site and the Inspector gives no reasons why there would have been “significant and insuperable planning objections to the particular development”. In essence, the Inspector’s reasoning fails for the same reason as it did in Rooff’s case.

[86]I must now deal with the separate issue arising on the basis that the challenge on this ground is upheld. The issue is then whether the CAAD should be quashed as a whole or should be left in being having regard to an undertaking offered to the Court by the GLA. The undertaking was first offered in principle in a letter dated 12 April 2012 from the GLA’s solicitors to HMT’s solicitors. The undertaking offered was that in any proceedings for assessment of compensation in the Upper Tribunal, the GLA would accept that planning permission would have been granted for the ground floor of the building envisaged by the certificate for one or more of classes A1, A3 and a crèche within class D1.

[87]Mr Hill’s submission in opening the application before me was that this undertaking did not give to HMT the statutory certainty of approach by the Tribunal which would follow from a certificate properly specifying the additional classes of use. Further, during the hearing Mr Hill pointed out that the offer did not include any offer in relation to HMT’s reasonable expenses, including expenses at the inquiry, as envisaged by section 17(9A) of the Act. As a result, Mr Glover QC for the GLA proffered a more fully worded form of undertaking to the court to include a provision as to expenses within section 17(9A).

[88]In reply, Mr Hill repeated that the undertaking was still unsatisfactory and that the decision under challenge should be quashed. He argued that the Upper Tribunal could not be bound by the undertaking; the Tribunal would still be required to have regard to the certificate as issued. He argues that the GLA has failed to demonstrate a good reason why the decision of the Minister should not be quashed if it is legally flawed in this one respect, even if in no others. Mr Hill said that, for his client’s part, if the decision were to be quashed HMT would not be looking for a new inquiry with all the attendant delays, none of which would be in its interest. He accepted, however, I did have a discretion in the matter.

[89]I have not found this aspect of the argument easy. On the one hand, I can understand HMT’s concerns that they might in some way be prejudiced before the Tribunal, in some manner that cannot presently be foreseen, if they were to settle for something less than a certificate in a form to which the court considers it to be entitled. On the other hand, it seems to me to be excessive to quash this entire decision, when the Minister has been successful in meeting the challenge presented on a number of grounds, and has failed only on this one point.

[90]On balance, I consider that the right course is to accept the GLA’s undertaking and refuse to quash the certificate but to grant to HMT permission to apply to the court for a quashing order if it turns out that it is in some way prejudiced in the Tribunal proceedings in a manner that cannot be met by the undertaking.

(L) Conclusion

[91]For the reasons given above, the challenges to the Minister’s decision fail on all grounds, save for ground 6. On the undertaking offered by the GLA, I refuse to quash the CAAD at this stage, but reserve to HMT permission to apply for a quashing order if it should turn out that it has been prejudiced in some way that is not protected by the undertaking.