Wainhomes (South West) Holdings Ltd v Secretary of State for Communities and Local Government & Anor [2012] EWHC 914 (Admin)

[2012] EWHC 914 (Admin)Case No CO/11993/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
Venue Cardiff Civil Justice Centre, 2 Park Street, Cardiff, CF10 1ETDate 04/04/2012
Before
THE HONOURABLE MR JUSTICE BEATSON
Between
Wainhomes (South West) Holdings LtdClaimantSecretary of State for Communities and Local GovernmentFirst DefendantCornwall CouncilSecond Defendant
David Elvin QC and Richard Moules (instructed by Ashfords) for ClaimantRupert Warren (instructed by the Treasury Solicitor) for First Defendant for The Second Defendant did not appear and was not representedHearing Hearing date: 29 March 2012
Judgment

Introduction

[1]The claimant seeks an order pursuant to section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) quashing the decision of the Secretary of State contained in a letter dated 31 October 2011 refusing to grant it outline planning permission. The proposal is for a large development on a 52 hectare site at Treverbyn Road, St Austell, Cornwall, on the north-western fringe of the town. It is for 1,300 dwellings, and associated development including retail floorspace, a sixty-bed care home, a primary school, a community transport hub, and associated engineering works, infrastructure, drainage and car parking. The proposal is one of the largest housing applications ever made in Cornwall. It was estimated (see Inspector’s Report (hereafter “IR”), paragraphs 6.1 and 10.29) that the development could add approximately 10% to the housing stock of the St Austell area and provide between approximately 25% and 40% of the total housing requirement for St Austell in the period to 2030. A phased programme of implementation was envisaged, with development commencing on the northern edge of the site: IR, paragraph 4.3.[2]The Council failed to determine the application, and the claimant appealed under section 78 of the 1990 Act. The Council later decided to contest the appeal on a number of grounds, including lack of need of such a large development in advance of the preparation of the Cornwall Core Strategy. On 16 August 2010 the Secretary of State recovered the appeal to determine it himself pursuant to section 79 and paragraph 3 of Schedule 3 to the 1990 Act. A public inquiry was held between 30 November and 8 December 2010 before Mr Pike, an Inspector appointed by the Secretary of State.[3]The Inspector made his recommendation that the appeal be dismissed in a report dated 22 February 2011. In summary, the following conclusions of the Inspector are material for present purposes. First, there was probably a five year supply of housing land in Cornwall and so no pressing need for the proposed housing. Secondly, the proposed development was contrary to the development plan, the Cornwall Structure Plan. Thirdly, the size of the development meant that the grant of planning permission would prejudice decisions being addressed in the emerging Cornwall Core Strategy. This was because granting permission would reduce the choices otherwise available to the Local Development Framework (“LDF”) site selection process, and would deny the local community the opportunity of determining its preferred choice of housing sites for St Austell in accordance with the Government’s localism policy. The main issues were therefore whether, having regard to the provisions of the development plan and Planning Policy Statement 3 (“PPS 3”), there is a need for the proposed housing, and whether the release of this large site would be premature in advance of the Council’s Core Strategy.[4]After the Inspector’s report was published, the Secretary of State wrote to the parties to invite the provision of up-to-date information on housing need and housing land supply in Cornwall. They made representations and provided an Additional Housing Supply Statement of Common Ground (“AHSSCG”). In the light of the additional evidence, the Secretary of State found, contrary to the Inspector’s recommendation, that the Council could not demonstrate an adequate five year housing land supply. He, however, accepted the Inspector’s recommendation that the appeal be dismissed and planning permission refused on the prematurity ground. He concluded (decision letter, paragraph 26) that “the appeal proposal is of such a scale that to permit it now would prejudice decisions that ought properly to be taken locally as part of the LDF process, and that the appeal scheme would not accord with PPS 3 on account of it, undermining wider policy objectives in Cornwall” and that allowing the appeal “in advance of establishing the appropriate level of future housing across Cornwall would pre-empt decisions that should be taken locally”.[5]The issues in this application are relatively narrow, and to some extent overlap. The first ground relied on by Mr Elvin QC, on behalf of the claimant, is inconsistency between the decision in this case and the Secretary of State’s decision on the issue of prematurity in another appeal concerning a Cornish site, Binhamy Farm, Bude. Secondly, Mr Elvin also submitted that the Secretary of State’s decision is internally inconsistent and irrational because the Secretary of State adopted the Inspector’s conclusion on prematurity but rejected the premises on which that conclusion was based without any explanation or adequate reasons. A third ground, that the Secretary of State had failed to have regard to or misapplied the policy guidance in paragraph 17 of the Planning System General Principles and paragraph 72 of PPS 3, or departed from that policy without giving reasons for it, was not pursued. Mr Elvin recognised that, since the application was contrary to the current, albeit outdated, development plan, prematurity was not the sole reason for refusal in this case.

The legal and policy framework

[6]Section 288 of the 1990 Act provides that a person aggrieved by any action on the part of the Secretary of State who wishes to question the validity of that action on the grounds that “the action is not within the powers of this Act” or “any of the relevant requirements have not been complied with in relation to that action” may apply to the High Court.[7]It is common ground that the relevant policy is contained in the material paragraphs of The Planning System: General Principles (ODPM, 5 May 2006) and Planning Policy Statement 3 (“PPS 3”) dated June 2011.[8]The Planning System: General Principles guidance document contains a section headed “Prematurity”.The material parts of this section provide: “PREMATURITY 17. In some circumstances, it may be justifiable to refuse planning permission on grounds of prematurity where a DPD is being prepared or is under review, but it has not yet been adopted. This may be appropriate where a proposed development is so substantial, or where the cumulative effect would be so significant, that granting permission could prejudice the DPD by predetermining decisions about the scale, location or phasing of new development which are being addressed in the policy in the DPD. A proposal for development which has an impact on only a small area would rarely come into this category. Where there is a phasing policy, it may be necessary to refuse planning permission on grounds of prematurity if the policy is to have effect 18. Otherwise, refusal of planning permission on grounds of prematurity will not usually be justified. Planning applications should continue to be considered in the light of current policies. However, account can also be taken of policies in emerging DPDs. The weight to be attached to such policies depends upon the stage of preparation or review, increasing as successive stages are reached. For example:• Where a DPD is at the consultation stage, with no early prospect of submission for examination, then refusal on prematurity grounds would seldom be justified because of the delay which this would impose in determining the future use of the land in question. … 19. Where planning permission is refused on grounds of prematurity, the planning authority will need to demonstrate clearly how the grant of permission for the development concerned would prejudice the outcome of the DPD process.”• Where a DPD is at the consultation stage, with no early prospect of submission for examination, then refusal on prematurity grounds would seldom be justified because of the delay which this would impose in determining the future use of the land in question. …[9]PPS 3 contains a chapter headed “Managing Delivery”. The material parts of this provide: “69. In general, in deciding planning applications, Local Planning Authorities should have regard to: - Achieving high quality housing - Ensuring developments achieve a good mix of housing reflecting the accommodation requirements of specific groups, in particular, families and older people. - The suitability of a site for housing, including its environmental sustainability. - Using land effectively and efficiently. - Ensuring 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 policy objectives eg addressing housing market renewal issues. … 71, 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. 72. Local Planning Authorities should not refuse planning applications solely on the grounds of prematurity.” - Achieving high quality housing - Ensuring developments achieve a good mix of housing reflecting the accommodation requirements of specific groups, in particular, families and older people. - The suitability of a site for housing, including its environmental sustainability. - Using land effectively and efficiently. - Ensuring 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 policy objectives eg addressing housing market renewal issues.[10]It is also relevant at this stage to refer to the Cornwall Core Strategy. The Unitary Council began developing this after its creation in April 2009. The Council identified three options for the level of future growth in Cornwall for the 20 year period ending in 2030. In terms of the number of dwellings per annum, these were a low, a medium and a high option, consisting respectively of 1,900, 2,400 and 2,850 dwellings per annum: see IR, paragraph 6.15. At the time of the planning inquiry in this case, the consultation on options had not commenced. It was anticipated that consultation on the options would commence in January 2011 and that the anticipated adoption for the Core Strategy would be April 2013: see IR, paragraph 6.5. As to the other stages, a report to the Council’s Cabinet Planning Policy Advisory Panel dated 24 September 2010 stated that the preferred spatial strategy and strategic site options would be completed by July 2011, a draft of the Core Strategy by December 2011, the submission of the Core Strategy by July 2012, the examination in November 2012, and adoption in April 2013.

The decision letter

[11]The Secretary of State agreed with the Inspector that the main issues in this case are(a) whether there is a pressing need for the proposed housing, having regard to the provisions of the development plan and PPS 3;(b) whether the release of this large site would be premature in advance of the Council’s Core Strategy; and(c) whether the ecological information is sufficient to enable a determination compliant with the relevant environmental regulations.[12]The parts of the decision letter which are relevant to the issues before the court are:
“Housing need 14. [The Secretary of State] agrees that the proposal is contrary to RPL [Restormel Local Plan] policy 3, but considers that the relevance of the RLP is limited, given that it is somewhat dated, with an end date of 2011 (IR 10.2). … 17…[H]aving regard to the figures in Table 5 of the AHSSCG, he considers that there is considerable uncertainty as to whether a five year supply of housing land exists in Cornwall and that, on this basis, the PPS 3 paragraph 71 presumption in favour of the grant of planning permission where there is not an up-to-date five year supply of deliverable sites would apply in this case. In accordance with the advice in PPS 3, the Secretary of State has gone on to consider to what extent the appeal proposal would accord with the considerations set out in paragraph 69 of PPS 3, particularly the need to ensure that 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 policy objectives. The claimant’s skeleton argument,§31(4) stated that, assuming the medium housing growth option, there is a 3.8 year housing supply. Prematurity 18. The Secretary of State agrees with the Inspector’s reasoning and conclusions as set out at IR 10.28 – 10.36 on whether the release of this large site would be premature in advance of the Council’s core strategy. He agrees that all that can be reasonably said (sic) at this stage is that the appeal site is one of a number of potential candidates which may be required to deliver the housing needs of the town (IR 10.30). He agrees that, consequently, the grant of planning permission would inevitably reduce the choices otherwise available to the forthcoming LDF site selection process, and could prejudice future decisions (IR 10.31). He further agrees that the grant of planning permission now would deny the local community the opportunity of determining its preferred choice of housing sites for St Austell and that, without full public consultation on all potential options, a complete representation of local opinion would not emerge (IR 10.36). 19. The Government has made it clear that its intention is to return decision-making powers in housing and planning to local authorities. This is a key planning priority for the Government, and the Secretary of State considers that in this particular case it is important to give Cornwall the opportunity to complete its Core Strategy process. Taking all the factors referred to by the Inspector into account, the Secretary of State agrees that there is a strong argument that the appeal is of such a scale that to permit it now would prejudice decisions that ought properly to be taken as part of the LDF process (IR 10.37). For these reasons, and with respect to the considerations set out in paragraph 69 of PPS 3, the Secretary of State considers that granting permission for the appeal scheme now would undermine wider policy objectives in Cornwall, and that the appeal scheme would not accord with PPS 3. … Other matters 22. The Secretary of State agrees with the Inspector’s assessment of other planning matters, as set out at IR 10.51 – 10.61. He agrees that the loss of part of the countryside setting to St Austell and the loss of good quality agricultural land are matters that weight against the proposal, and that it is not possible to reach a considered view on whether, in terms of landscape impact and agricultural land quality, the appeal scheme might be better or worse than other potential sites for large-scale housing development (IR 10.53)…. … Overall conclusions 25. The Secretary of State agrees with the Inspector’s reasoning and conclusions on the balance of considerations, as set out at IR 10.65 and IR 10.68 – 10.70. For the reasons given at paragraph 14 above and IR 10.65, he concludes that the proposal is contrary to the development plan. 26. The Secretary of State concludes that it is probable that a five year supply of housing land does not exist in Cornwall and that, on this basis, the PPS 3 paragraph 71 presumption in favour of the grant of planning permission applies, subject to the considerations set out at paragraph 69 of PPS 3. However, he also concludes that the appeal proposal is of such a scale that to permit it now would prejudice decisions that ought properly to be taken locally as part of the LDF process, and that the appeal scheme would not accord with PPS 3 on account of it undermining wider policy objectives in Cornwall. The Secretary of State considers that allowing the appeal in advance of establishing the appropriate level of future housing provision across Cornwall would pre-empt decisions that should properly be taken locally. 27. [The Secretary of State] concludes that the loss of part of the countryside setting to St Austell and the loss of good quality agricultural land are matters that weight against the proposal.”
Prematurity Other matters

Overall conclusions

[13]Mr Elvin placed considerable reliance on the statements in the decision letter (paragraphs 18 and 19 set out at [12]) in which the Secretary of State stated that he agreed “with the Inspector’s reasoning and conclusions as set out in IR 10.28 – 10.36” on whether release of the site would be premature and that he took “all the factors referred to by the Inspector into account”. I have therefore set out the material parts of the conclusions section of the Inspector’s report on “prematurity” and the “balance of considerations” in an appendix to this judgment.

The Binhamy Farm, Bude appeal

[14]In view of the submissions about Binhamy Farm, Bude, I summarise the material features of that appeal. It was also recovered for the Secretary of State’s determination. The proposal was for 351 dwellings. The County Council had refused permission inter alia on the ground of lack of need, because the newly created unitary authority was engaged in the exercise of producing a county-wide Core Strategy, and because the extent to which Bude should contribute to that was a matter for the Council to consider, i.e. a localism point.[15]In March 2010 the Inspector recommended that the appeal be allowed and planning permission be granted subject to conditions. He concluded (IR, 6.54 – 6.55) that the need had been clearly shown and that the site was clearly suitable. On the middle core strategy option of medium growth there was a supply of 4.3 years. The Secretary of State issued his decision in August 2010. He rejected the Inspector’s recommendation and dismissed the appeal because he considered that the Council should be given the opportunity to address housing needs through the Local Development Framework process. He stated that he considered to allow the appeal would be premature in view of “the large scale of the proposal” and the significant weight he placed on the LDF process.[16]It was that decision (“Binhamy No. 1”) which was the subject of submissions by the parties in this case and was referred to by the Inspector in his report. Summarising the Council’s case, the Inspector recorded (IR, paragraph 6.20) that the Council had submitted that “the decision of the Secretary of State at Binhamy Farm demonstrates the importance that the Secretary of State attaches to local planning authorities having the opportunity to address the matter through the LDF process”. The claimant had argued at the inquiry in this case that there were material differences between the Binhamy Farm and the St Austell cases. In the conclusions section of his report the Inspector stated (IR, paragraph 10.36) that “the Secretary of State has already demonstrated the importance he attaches to local decision making through the LDF process in his appeal decisions at St Agnes and Bude…”. Mr Elvin submitted that this showed the materiality of the Binhamy Farm case to this case.[17]The decision refusing planning permission at Binhamy Farm was challenged and “Binhamy No. 1” was quashed by an order of this court dated 25 January 2011. I was informed that it was quashed by consent. The Secretary of State subsequently re-determined the Binhamy Farm appeal after the Inspector’s report in the present case but three months before he made the decision that is the subject of the present challenge. He issued a new decision letter (“Binhamy No. 2”) on 28 July 2011. The outcome in “Binhamy No. 2” differed from that in “Binhamy No. 1”. The Secretary of State agreed with the Inspector’s recommendation to allow the appeal and granted planning permission.[18]In “Binhamy No. 2” the Secretary of State stated (decision letter, paragraph 11) that because work on Cornwall Council’s Local Development Framework (“LDF”) was still at an early stage, he attached little weight to the emerging LDF. He noted (decision letter, paragraph 27) that the Core Strategy programme had slipped and agreed that the uncertainty over it and the site identification process meant that there was no guarantee of delivery from sites yet to be allocated. The fact that the emerging LDF is still in an early stage was also referred to in the section on prematurity. The Secretary of State stated that he was sympathetic to the Council’s representations on localism. He accepted that it was not yet known what scale of growth at Bude would be required by the emerging LDF, but stated that the LDF was still at an early stage: see decision letter, paragraphs 31 – 32.[19]The Secretary of State thus changed his mind. In “Binhamy No. 2” he balanced the localism factors against the fact that the LDF process was at an early stage. On need, he agreed that the process in paragraph 71 of PPS 3 had been triggered so that applications of the sort before him should be considered favourably, and stated the site was suitable for housing: see decision letter, paragraph 24.

Discussion

[20]The first ground of challenge is inconsistency between the dismissal of the appeal in the present case and the materially similar decision in “Binhamy No. 2” on the issue of prematurity. Mr Elvin relied on the principle enunciated by Mann LJ in North Wiltshire DC v Secretary of State for the Environment (1992) 65 P & C.R. 137 at 145; [1992] JPL 955 at 959, which has been widely followed: see e.g. R (Chisnell) v London Borough of Richmond-Upon-Thames [2005] EWHC 134 (Admin) and Dunster Properties Ltd v First Secretary of State [2007] EWCA Civ 236. The North Wiltshire case concerned the planning history in relation to the site in question, but the principle is not so confined and, in Fox Strategic Land and Property Ltd v Secretary of State [2012] EWHC 444 (Admin) it was applied to two different sites, albeit very close to each other. It was common ground that the issue is the materiality of the other appeal decision to the appeal under consideration.[21]In the North Wiltshire DC case Mann LJ stated:
“One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest, and it would be wrong to do so, that like cases must be decided alike. An Inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another, but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.”
[22]Mann LJ stated that a practical test for an Inspector, and I add the Secretary of State when it is the Secretary of State who makes the decision, is to ask whether, if he decided the case before him in a particular way, he was necessarily agreeing or disagreeing with some critical aspect of the decision in the other appeal. The areas for possible agreement or disagreement he identified included interpretation of policies, aesthetic judgements, and assessment of need. Mann LJ stated that where there is disagreement with an earlier decision which was material, the Inspector had to weigh the previous decision and give his reasons for departing from it. The reasons could, on occasion, be short, for example in the case of a disagreement on aesthetics, but on other occasions they might have to be elaborate.[23]In Chisnell’s case, Newman J stated (at [20]) of a previous decision which is a material consideration that “because of the importance to be attached to consistency, a decision-maker should not depart from it without realising the importance to be attached to it, and when departure occurs, reasons for departure from any previous decision must be given”. In the Dunster Properties case, Lloyd LJ stated (at [23]) that, if the decision-maker did not give reasons for a refusal to follow the basis of an earlier decision which was a material consideration, he would either “not have a proper regard to it, in which case he has failed to fulfil the duty to do so, or he has done so but has not explained his reasons, in which case he has not discharged the obligation to give his reasons”.[24]Mr Elvin submitted that, in terms of prematurity, the Binhamy Farm decision is materially identical to this case. He accepted that before the Inspector the claimant had argued that there were differences between the two cases, but those arguments were rejected by the Inspector. He submitted that the cases were materially identical because both appeals concerned the same local planning authority, both concerned the same emerging Core Strategy, that emerging Core Strategy had not progressed any further or changed between the re-determination of the Binhamy Farm appeal and the Secretary of State’s decision in the present case, and in both appeals there was found to be a similar housing shortfall.[25]Mr Elvin also relied on the decision in Fox Strategic Land and Property Ltd v Secretary of State [2012] EWHC 444 (Admin). In that case HHJ Gilbart QC quashed the decision of the Secretary of State dismissing the applicant’s appeal against the refusal of planning permission on the ground that the Secretary of State had followed a different and contradictory approach in two decisions which raised very similar issues in terms of the impact of those developments on spatial objectives of the local plan. The judge held at [6] and [40] – [44] that the Secretary of State’s conclusion in the other appeal (the Richborough appeal), which was not the subject of challenge, could not be reconciled with the Secretary of State’s conclusions on the same topic in the case before him. Mr Elvin submitted that it was “notable” that the decision letter in the present case contained no mention of the quashing of “Binhamy No. 1” and the Secretary of State’s re-determination of the Binhamy Farm appeal, or any attempt to distinguish the two in terms of the appeal or the stage reached by the relevant draft plan.[26]The starting point is whether the Binhamy No. 2 decision is a material consideration. As Mann LJ recognised in the North Wiltshire case, the statement that like cases should be decided alike presupposes that the earlier case “was alike and was not distinguishable in some relevant respect”. He stated that, if it was distinguishable, then it usually would lack materiality by reference to consistency, although it might be material in some other way: see [1992] JPL at 959.[27]On this issue, I first consider the position without taking into account Mr Elvin’s submission that the Secretary of State accepted the materiality of the Binhamy Farm appeal in his decision letter because he incorporated the Inspector’s reasoning by reference in his decision letter. As to whether, apart from this “incorporation by reference” point, the decisions were alike and were not distinguishable in some relevant respect, I accept Mr Warren’s submission that there were material differences between them. The proposed development in this case is nearly four times the size of the proposal for development on the Binhamy Farm site. I have referred to the fact that the application before me was found by the Inspector to be “one of the largest housing applications ever made in Cornwall”. He stated that it would increase the housing stock of the St Austell area by about 10%, and would equate to between 25 and 40% of all the housing units likely to be needed in that part of Cornwall in the period ending in 2030. He found that the St Austell application would be likely to be phased, and that its likely first phase might not be best related to the town (IR, paragraph 10.33, see appendix.) The two proposals concern two different towns, and propose to extend those towns in different ways. In the light of the submissions, made on behalf of the claimant at the inquiry, that the two cases were different, the centrality of the Binhamy Farm appeal to the present proceedings is striking, although understandable in view of Mr Elvin’s “incorporation by reference” point.[28]For these reasons, absent the “incorporation by reference” point, I do not consider that the Inspector was required to explain why he took a different view as to prematurity in this case, and the much smaller Binhamy Farm proposal in another town at some distance from St Austell.[29]It is, no doubt, because of the differences to which I have referred that Mr Elvin submitted that, in the present case, the Secretary of State in his decision letter accepted the materiality of the Binhamy Farm appeal. He did so because the Secretary of State stated that he agreed with the Inspector’s reasoning and conclusion, and one of the matters mentioned by the Inspector in this case was (see IR, paragraph 10.36, set out in the appendix) the appeal at Binhamy Farm. Although there is no mention of the Binhamy Farm decision in the decision letter, Mr Elvin submitted that the Secretary of State in substance incorporated the Inspector’s reasoning and conclusions into his decision letter, and thus the reasoning on the materiality of Binhamy Farm in relation to the prematurity issue.[30]It is important to look closely at what the Inspector in this case said about “Binhamy No. 1”. The first sentence of paragraph 10.36 of his report is primarily concerned with the localism principle. In my judgment, the thrust of the remainder of the paragraph is also focussed on local decision-making rather than the specifics of the planning decisions made in the appeal decisions at St Anne’s and Bude which are referred to. The Inspector did not examine the Binhamy Farm decision at all, let alone in any detail. The structure of paragraph 19 of the decision letter shows that the Secretary of State was stressing the same point as the Inspector stressed, that is the localism agenda. To read the decision letter in the way Mr Elvin invited me to do is to read it with an excessively legalistic eye in the way which the authorities (see Clark Homes v Secretary of State (1993) 66 P & C.R. 263 and South Somerset DC v Secretary of State (1993) 66 P & C.R. 83 at 85) direct should not be done. I accept Mr Warren’s submission that, reading the decision letter in good faith and in the context of the general thrust of the Secretary of State’s reasoning, paragraph 10.36 of the Inspector’s report is primarily concerned with the localism principle.[31]Mr Elvin submitted that what Mr Warren was doing in formulating submissions as to material differences between the two decisions was providing the sort of analysis that the Secretary of State might have given for explaining why he took a different view on prematurity in the present case. He argued it was for the Secretary of State to provide the analysis when making his decision, and not for counsel to do so on an ex post facto basis. But, as Mann LJ recognised in the North Wiltshire case, it is only when the earlier case is truly alike and not distinguishable that the principle that like cases should be decided alike comes into play so that, if there is a different of result, the previous decision has to be weighed and reasons given for a departure from it.[32]As I have stated, there is no express reference to the Binhamy Farm appeal in the decision letter. The Secretary of State, in his “Binhamy No. 2” re-determination, expressed sympathy for the Council’s position on localism, but concluded that “in this case”, “no material harm would be caused by the release of the site for development in advance of adoption of development plan documents”. He did not consider “that the proposed development is so substantial or its effect so significant that granting permission at this time would be prejudicial to the proper long-term planning of the area”: decision letter, paragraphs 31 – 32. He also found that there were no other material considerations of harm that weighed in the balance against the grant of permission in that case: decision letter, paragraph 41.[33]In the present case, the Secretary of State took a different view about the likely effects of this, much larger, application. The doubts included the location of the first phase, and harm due to the loss of countryside and good quality agricultural land. These are referred to in paragraphs 22 and 27 of the decision letter: see [12]. Again, Mr Elvin submitted that Mr Warren, in relying on these points, was providing the reasoning for distinguishing “Binhamy No. 2” that the Secretary of State should have provided. However, that is a submission that, while presented very attractively by Mr Elvin, in a sense proves too much. For it would require a decision-maker to explain why an earlier decision was not material even where there are significant differences of the sort that there are in this case. That is not what was required by Mann and Lloyd LJJ.[34]Mr Elvin’s fallback submission under this ground was that the Secretary of State failed to give adequate and intelligible reasons for taking a different view about prematurity to the view he had taken in the Binhamy Farm appeal. On this, there is no difference between the parties as to the law. It is as stated by Lord Brown in South Bucks DC v Porter (No. 2) [2004] 1 WLR 1953 at [36]. The reasons may be shortly stated, but must cover the principal controversial issues between the parties, and they must “enable the reader to understand why the matter was decided as it was, and what conclusions were reached on the ‘principal important controversial issues’”. In this case, it was clear to the applicant from the decision that, because of the size, the non-conformity with the (admittedly out of date) development plan, and the prejudicial impact if permission was granted on decisions about the scale and location of housing in St Austell as part of the LDF process, the claimant either had to wait until the LDF process was further advanced, or make a smaller application.[35]I turn to ground 3, which Mr Elvin termed “internal inconsistency”, “illogicality” and “irrationality”. He recognised that this overlapped with the first ground. He argued that the Secretary of State’s decision is internally inconsistent and illogical because the Secretary of State adopted the Inspector’s conclusion on prematurity but rejected the two building blocks upon which the Inspector’s conclusion was based, and did so without explaining why or giving reasons.[36]The first of the two building blocks used by the Inspector for his conclusion on prematurity relied on by Mr Elvin was that the Council could demonstrate a five-year housing land supply so that paragraph 71 of PPS 3 and its statement that where there is less than a five-year supply of deliverable sites applications should be considered favourably having regard to the policies did not apply. The second was that the Secretary of State’s determination in “Binhamy No. 1” supported a refusal of planning permission on the ground of prematurity. Mr Elvin submitted that, since the Secretary of State accepted on the basis of the updated housing figures that the Council did not have adequate five-year housing land supply, and because the Secretary of State, when re-determining the Binhamy Farm appeal, had concluded that it should not be dismissed on the ground of prematurity in part because the LDF process was progressing much more slowly, it was irrational and illogical to adopt the Inspector’s conclusion on prematurity. Again, Mr Elvin alternatively submitted that the Secretary of State failed to give adequate and intelligible reasons for adopting the Inspector’s conclusion on prematurity, notwithstanding that he did not consider the Inspector’s approach, and the building blocks upon which the conclusion rested, to be valid.[37]While the statement by the Secretary of State that he agreed with the Inspector’s reasons and conclusions at one stage appeared troubling, if one reads the decision letter in the straightforward way suggested in the authorities, there is, in my judgment, no illogicality in the decision. It is clear from the decision that the Secretary of State disagreed with the Inspector’s conclusions as to need as a result of the additional evidence before him. On prematurity, it is important to look closely at what the Inspector said about “Binhamy No. 1”. I have, when dealing with the submissions on inconsistency, stated that the focus and thrust of paragraph 10.36 of the Inspector’s report concerned the localism policy, and that since the Inspector did not examine the Binhamy Farm decision at all, let alone in any detail, the reference to the Bude, i.e. “Binhamy No. 1”, decision was limited to that. Accordingly, it does not follow that two of the Inspector’s building blocks were rejected.[38]The two factors emphasised by Mr Elvin, need and the Binhamy Farm appeal, were, moreover, not the only building blocks in the Inspector’s recommendation. There was also the question, considered in paragraph 10.33 of the Inspector’s report, of the fact that the application proposed a phased development, and that one way in which allowing the claimant’s appeal would prejudice the LDF is that the appeal proposal might prevent a scheme which is of the same size as phase 1 of this application coming forward at a better location. The Inspector also stated that, if the Secretary of State determined that the five-year supply of housing land did not currently exist, this objection would apply with greater force. The Secretary of State, having so found, this became an additional factor in favour of a conclusion of prematurity.[39]In conclusion, I accept Mr Warren’s submission that there was nothing in the Secretary of State’s rejection of the Inspector’s conclusion on need which was inconsistent with the adoption of the Inspector’s reasoning on other parts of the prematurity objection, including the phasing point and the issue as to the proposed first phase. For the reasons I have given, the Secretary of State did not err in failing to treat the Binhamy Farm appeal as a material consideration because of the differences which I have set out. Moreover, the Inspector’s report only relied on “Binhamy No. 1” in the sense of saying that the “principles underlying the localism agenda apply equally to this case”. There was no reliance on the actual planning judgment in “Binhamy No. 1”. The Inspector stated in paragraph 10.36 that “the specifics of each proposal are different”.[40]There is also an alternative “reasons” component to this ground. It is, however, not in reality a free-standing ground. The decision letter in the present case is clear in stating that it found in favour of the claimant on the question of need, but against it on the overall balancing of considerations, and the conclusion on prematurity, because of the scale of the present application.[41]For these reasons, this application is refused. Appendix: Extracts from the Inspector’s Report 42. In the part of the “Conclusions” section of his report on “prematurity”, the Inspector stated:
“Prematurity 10.28 In circumstances where a proposed development is so substantial that granting planning permission could prejudice decisions about the scale or location of new development which are being addressed in a DPD that is being prepared, PSPG says it may be justifiable to refuse planning permission on grounds of prematurity. It also says that where a DPD is at consultation stage, refusal on prematurity grounds would seldom be justified because of the delay this would impose on determining the future of the land in question. If prematurity is to be used as a ground of refusal, PSPG requires evidence of how the development would prejudice the outcome of the DPD process. PPS3 advises that applications should not be refused solely on the grounds of prematurity, though that does not apply in this case because the proposal is contrary to the development plan. [5.22 23] 10.29 The appeal proposal is one of the largest housing applications ever made in Cornwall and would increase the housing stock of the St Austell area by about 10%; thus it is plainly "substantial". Whatever strategy is decided by the Council through the CCS process, it seems highly probable that land for a sizeable number of new dwellings will need to be identified in the St Austell area in the period to 2030. Although it is not possible to predict the outcome of the CCS process, it is conceivable that the proposed 1,300 dwellings could represent around 40% of the total requirement for St Austell; even if the high growth option is favoured, the proportion could still be about one quarter. My estimate based on the very rough approximation used by the Council of one third of the Mid 2 requirement going to St Austell. [6.1] 10.30 The SHLAA identifies a significant number of potential strategic sites around the town, including the appeal site and various parts of the eco-town proposal, with an estimated total capacity of almost 15,000 dwellings. The appeal site scores quite highly under the comparative evaluation process and the Council does not dispute that it is a sustainable location for development which is well located to St Austell town centre. The SHLAA is just one aspect of the evidence base that will inform future decisions about site selection, however, and it would be wrong to place undue reliance on its findings. The thorough comparative testing of all potential options, which is such an important part of the LDF process, is the best way of reaching a balanced judgement about the optimum choice of housing sites for St Austell. All that can reasonably be said at this stage is that the appeal site is one of a number of potential candidates which may be required to deliver the housing needs of the town. [6.16-17] 10.31 Consequently, the grant of planning permission now would inevitably reduce the choices otherwise available to the forthcoming LDF site selection process and could prejudice future decisions. In particular, it could affect the ecotown proposal given the Government's advice that such schemes should be a minimum size of 5,000 homes. The St Austell eco-town has the potential to be highly sustainable, both in terms of the zero carbon and other standards set out in the PPS supplement, and also because it would be built on former mineral workings rather than the high quality agricultural land of the appeal site. It may be, as the appellant alleges, that there are funding and other difficulties confronting the eco-town proposal, but on the evidence submitted to the inquiry it is not possible to reach even a tentative conclusion about whether or not it will proceed, or at what pace. As with the other large sites identified in the SHLAA, the eco-town proposal remainsan option that should be considered fully through the LDF process. [5.24, 6.18, 6.20] 10.32 Because of the finding that a five year supply exists, little weight should be given to the argument that there is an immediate need which could not be met by other large sites which have not progressed to the advanced stage of the appeal proposal. There is no compelling reason to suppose that sites selected during the LDF examination process, when factors such as deliverability will be taken into account, would not be able to meet the predicted shortfall in years 6-10 (and beyond). But even if the appellant's predictions of further delays in CCS preparation were accepted, leading to apotential gap in supply, that does not justify releasing the whole of the appeal site at this stage. [5.20,5.24] 10.33 It is clear from the application for 495 houses that the possibility of a phased release of the appeal land has been countenanced; moreover, as the Council points out, a different first phase that is better related to the town might be more likely to succeed if a justifiable need were identified. Of course, the same argument applies - with even greater force - if the Secretary of State were to determine that a five year supply of housing land does not currently exist. Self evidently, the release of a smaller site in advance of the LDF outcome would cause less prejudice to the DPD process. [6.8] 10.34 The intended production of an interim Regeneration Action Plan to guide regeneration in the St Austell and China Clay areas does, as the appellant contends, send a mixed message about the Council's treatment of large scale land releases in advance of LDF completion. In broad terms the RAP appears to offer the prospect of sizeable mixed use and highly sustainable developments being permitted outside the CCS process. Whilst it is unclear how the RAP will be progressed in tandem with the CCS, it is difficult to understand why any schemes permitted under the RAP would not themselves be prejudicial to the CCS site selection process. Nevertheless, in the determination of this appeal, no weight can be attached to the possible emergence of a non-statutory plan of this nature. [5.12] 10.35 It is true that the employment element of a scheme permitted after completion of the CCS process would be beyond the 2013 end date for European Convergence funding. However, even if this appeal is allowed, there is no guarantee that European money would be forthcoming as there are currently more projects than available funds. Moreover, it is likely that much of the employment development would take place after the Convergence funding programme has closed, so the potential benefit to the appeal scheme as a whole is limited. In addition, it is not part of the appellant's case that Convergence funding is essential to the viability of the proposal. In these circumstances only limited weight should be given to the potential loss of Convergence funding. [5.28,7.34] 10.36 The grant of planning permission now would deny the local community the opportunity of determining its preferred choice of housing sites for St Austell. This is particularly important given the Coalition Government's strong message that such decisions should be taken at a local rather than national level. Without full public consultation on all potential options, such as would occur through the LDF process, a complete representation of local opinion would not emerge and the greater democratic accountability and local ownership of decisions sought in the Local Growth White Paper would not be achieved. The Secretary of State has already demonstrated the importance he attaches to local decision making through the LDF process in his appeal decisions at St Annes and Bude, the former being a case where the housing supply fell substantially below five years. Whilst the specifics of each proposal are different, the principles underlying the localism agenda apply equally to this case. [6.20,7.30]+ 10.37 Taking all these factors into account, there is a strong argument that the appeal proposal is of such a scale that to permit it now would prejudice decisions that ought properly to be taken as part of the LDF process. …although the CCS is not yet at consultation stage (albeit that is imminent) the existence of a five-year housing supply and the emergence of a variety of sites that have potential to meet the needs in years 6 – 10 and beyond means that there is no pressing need for the immediate release of this land. Instead, in the interests of local decision-making and accountability, the choices should be left to the LDF process. Whilst this will cause some delay in determining the future of the appeal site, a similar delay will occur in any event to the other potential sites identified through the SHLAA process. In the absence of a pressing need, there is no compelling reason to treat the appeal site differently.” phased release of the appeal land has been countenanced; moreover, as the Council points out, a different first phase that is better related to the town might be more likely to succeed if a justifiable need were identified. Of course, the same argument applies - with even greater force - if the Secretary of State were to determine that a five year supply of housing land does not currently exist. Self evidently, the release of a smaller site in advance of the LDF outcome would cause less prejudice to the DPD process. [6.8] 43. In the part of the “Conclusions” section of his report on “Balance of Considerations”, the Inspector stated: “10.67 In these circumstances, greater weight should be placed on the factors which point to a five year supply of housing land than those which do not…Overall, the considerations in PPS 3 which promote a sufficient quantity of housing, including affordable housing, do not justify the grant of permission now. 10.68 The appeal site is one of a number of potential options to meet the longer term need for housing in the St Austell area. The size of that need, and a thorough analysis of the benefits and disbenefits of the options for satisfying the need, will take place shortly through the LDF process. The appeal site is very large and, if it is allocated for development, it is likely that one or more of the other potential sites would not be allocated. Thus the full range of options and choices that would otherwise be subject to testing and public consultation as part of the LDF process would be constrained if permission for a sizeable part of the housing need were granted now. … 10.70 The appeal site is in an elevated location on the edge of St Austell; its development would result in the loss of a prominent part of the countryside setting to the town and the loss of good quality agricultural land. It is not possible to say whether the appeal scheme would be better or worse than other potential sites for large scale housing development; that is a matter for the LDF process. 10.71 There are clearly some important benefits of the proposal. …Overall, however [the benefits] are not sufficient, in the absence of a pressing need for the immediate development of such a large number of houses, to outweigh the conflict with the development plan and the Government’s strong desire that decisions about the future strategy for an area should be taken by the local community through the LDF process.”