JB Trustees Ltd & Ors v Secretary of State for Communities and Local Government & Ors [2013] EWHC 3555 (Admin)

Case No CO/12109/2012[2013] EWHC 3555 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18 November 2013
Before
Mr Justice Lindblom
Between
JB Trustees LimitedClaimantsPhillip JeansClaimantSandra JeansClaimant(as trustees for) Seymour Holdings Pension FundClaimantSecretary of State for Communities andDefendantsLocal GovernmentDefendantBroadland District CouncilDefendantDennis Jeans Developments LimitedDefendant
Mr Satnam Choongh and Ms Victoria Hutton (instructed by K&L Gates LLP) for claimantMs Justine Thornton (instructed by The Treasury Solicitor) for first defendantMr John Pugh-Smith (instructed by LSR Solicitors & Planning Consultants) for thethird defendantHearing Hearing date: 8 October 2013
Judgment

Introduction

[1]This is an application under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”). The claimants seek an order to quash the decision of the inspector appointed by the first defendant, the Secretary of State for Communities and Local Government (“the Secretary of State”), in a decision letter dated 3 October 2012, to allow the appeal of the third defendant, Dennis Jeans Development Ltd., against the failure by the second defendant, Broadland District Council (“the Council”), to decide an application for outline planning permission for residential development on land at Salhouse Road in Rackheath, Norfolk. The third defendant is a development company owned and controlled by Dennis Jeans, who is Phillip Jeans’ brother.[2]When these proceedings were begun there was only one claimant, JB Trustees Ltd., a trustee of the Seymour Holdings Pension Fund (“the Pension Fund”).However, when the case came before me, Mr Satnam Choongh, who appeared for JB Trustees Ltd., sought the court’s permission to add two more claimants, Phillip Jeans and his wife, Sandra Jeans, both of whom are also trustees of the Pension Fund.That application was not opposed. I granted it.[3]The claimants say the inspector erred in law when he imposed a condition requiring the details of the access arrangements for the development to include a pedestrian and cycle path in two parts of the appeal site. They say the inspector ought to have imposed a condition requiring a connection to a path on land to the west and south-west of the appeal site, across their strip of land.

Background

[4]The appeal site comprises the residential plot at 65 Salhouse Road and adjacent farmland. The inspector limited the development for which he granted permission to a maximum of 80 houses.[5]The claimants own a strip of land, just under a metre wide, next to the south-west boundary of the appeal site. On the other side of this strip, and next to a large area of land that has been developed for housing, is an area of woodland owned by the Council. By a transfer dated 22 October 1999 a company of which Phillip Jeans was a director, New Rackheath Development Consortium Ltd., sold the development land to the south-west of the appeal site to Persimmon Homes (Anglia) Ltd.. The transfer contained a covenant requiring the creation of an access way from the highway up to the strip of land that had been retained by New Rackheath Development Consortium Ltd.. By a deed of covenant made by the Council as landowner and New Rackheath Development Consortium Ltd. on 19 September 2011 the Council committed itself to performing the access way covenant in the transfer.[6]Mr David Lander, the third defendant’s planning consultant, says in his witness statement of 22 November 2012 (at paragraph 3) that Phillip and Dennis Jeans are engaged in “a family and financial dispute”, and that “[the] claim appears to be a further attempt by Mr Phillip Jeans … to ransom the proposed development by the [third defendant], a company controlled by Mr Dennis Jeans”.[7]The development plan for the area in which the appeal site lies is the Joint Core Strategy for Broadland, Norwich and South Norfolk (“the joint core strategy”), which proposes major development in Rackheath. The Government has selected Rackheath as the location for the development of an “eco-village”.[8]Parts of the joint core strategy were successfully challenged in a claim for judicial review decided by the court in 2012. They were remitted for reconsideration by the local planning authorities responsible for preparing the joint core strategy.[9]Policy 12 of the joint core strategy, which relates to “[the] remainder of the Norwich urban area, including the fringe parishes” says that the Norwich urban area will be expanded by significant growth in several settlements, one of which is Rackheath. It says that “opportunities will be sought” “…• to improve the gateways to Norwich by seeking co-ordinated environmental and townscape improvements on all major routes from the urban edge to the city centre”. The policy goes on to say: “Green infrastructure and links between currently fragmented habitats and to the rural fringe will be protected[,] maintained and enhanced. This will include: …• the establishment of a comprehensive cycle and walking network …” and “Construction of the Northern Distributor Road … will reduce the impact of traffic on residential areas and allow significant enhancement of public transport, cycling and walking through: …• development of comprehensive walking and cycling links … ”. …• the establishment of a comprehensive cycle and walking network …• development of comprehensive walking and cycling links[10]A “master plan” has been prepared for Rackheath. Mr Lander explains its status in paragraph 16 of his witness statement: “The illustrative master plan for the eco-village has been prepared by the promoters of the development. It has no planning status nor has the scheme as a whole, except generally in national policy. The master plan assumes eco-village development on the appeal site and identifies some indicative principles, including extension of the woodland belt, existing to the north of the Canfor Road estate, eastwards across the northern boundary of the appeal site; and a continuous footpath route through the Canfor Road woodland belt, and extending across the appeal site’s northern boundary towards a proposed rail station (to the east of the appeal site). The means of implementing any of this are unresolved, and have not to my knowledge been addressed.[11]On the Rackheath master planthe appeal site is shown with a red broken line passing through it, which represents a cycle path.

The third defendant’s application and appeal

[12]On 23 August 2011 the third defendant applied to the Council for outline planning permission for residential development on the appeal site. In the application approval was sought for access on to Salhouse Road.[13]In a letter to the Council dated 10 February 2012 Barton Willmore, the planning consultants acting for the Pension Fund, objected to the proposed development and set out lengthy representations. Their letter ran to 18 pages. They raised a number of concerns about the application. In their “Summary of Concerns” they said:
“Our main concerns with the application may be summarised as follows: 1. There are a number of procedural issues that have not been properly considered in this case, e.g. the requirement for EIA, the validation requirements set out in the Town and Country Planning (Development Management Procedure)(England) (Order) 1990, the vagueness of the description of the development, lack of any development parameter plans; 2. The material considerations cited by the Applicant are weak and on balance are not sufficient to justify approval of this scheme, not least given the uncertainty surrounding the [joint core strategy] and the fact that the first claim for Judicial Review centres on the spatial locations for growth which includes the Old Catton, Sprowston, Rackheath, Thorpe St Andrew Growth Triangle. …”
One of the other points raised in this summary was “the absence of any pedestrian access through the Canfor Road estate”, which, it was said, would make it necessary for children living on the site to walk “along the busy Salhouse Road” to get to Rackheath Primary School”. Under the heading “Access Options” Barton Willmore said this:
“We note that access is not a Reserved Matter and that the Applicant is seeking to have this approved in principle at Outline stage. We also note that the access position to the proposed development as shown on the current plans has moved from an original proposal for access off of Canfor Road to a location off of Salhouse Road. Reading of the application material reveals that this is due to ‘commercial considerations’[. However,] no further explanation is given. We question what the ‘commercial considerations’ are and submit that this very vague and seemingly unsubstantiated reason for promoting an alternative (and in our view inferior) access off of Salhouse Road is completely insufficient, particularly when viewed in the context of PPS3 and the [joint core strategy] and the requirement to take available opportunities for improving the character and quality of the area and the way it functions. Members are asked to carefully consider the fact that the access via Canfor Road can be delivered promptly, is genuinely available and can be implemented more easily than the proposed access off of Salhouse Road. An access via Canfor Road would mean access taking place over land that has recently been returned to our client by Broadland District Council … as part of an agreement that was held between [the Council] and Persimmon Homes to effect an appropriate access to the Application Site.”
Barton Willmore made various “Technical Comments” on the proposed access arrangements, including the suggestion that “servicing the site via Canfor Road provides a more sustainable and potentially safer means of access for pedestrians”.

(h) :

“We are very concerned to note that the current proposals would necessitate, in the apparent absence of any pedestrian access through the Canfor Road estate, primary school aged children exiting the site via the proposed Salhouse Road junction and walking along the busy Salhouse Road to the nearby Rackheath Primary School. This is surely inconsistent with the requirements of PPS3 and the obligation to ensure that children are provided with safe, healthy and sustainable routes to school. Surely the safest and most practical route is via Canfor Road and Cornwall Close to Willoughby Road, where the school is located. Again, this serves to demonstrate once more how the best opportunities to develop this site have not been taken. Rather the Applicant has, for ‘commercial considerations’ that have not been clarified, sought to take what must be the easiest option for achieving their own objectives.”
With their letter Barton Willmore sent the Council a drawing showing “how an alternative access off of Canfor Road could operate and the difference in walking distances to and from the primary school when the Canfor Road option and the Salhouse Road option are compared”.[14]The Council failed to determine the application within the prescribed period for an application for outline planning permission. The third defendant therefore appealed to the Secretary of State. The appeal went to an informal hearing.[15]On 6 July 2012, when arrangements were being made for the hearing, Barton Willmore sent an e-mail to the case officer at the Planning Inspectorate, saying that the Pension Fund would rely on the representations originally submitted to the Council, and that they wanted to speak at the hearing. They said their case was “related to the inappropriate access to the site, on land which our client owns …”.[16]On 1 August 2012 that request was repeated in a letter from Barton Willmore to the Planning Inspectorate, in which they said:
“As explained in my e-mail to you of 6th July 2012, our position with regard to this appeal is primarily related to the inappropriateness of the proposed access to the appeal site. There are a significant number of other planning concerns with the proposed development, elucidated in full in the representations at Appendix 1. Given the complexity of the issues and the commercial implications of the proposal for our client it is considered imperative that we are given the opportunity to address the Inspector during the Hearing, and to this end we would respectfully request that the Inspector allows us to do so. We are of the view that 20 minutes is required in order to present our case fully, and would ask that the Inspector takes this into account before the Hearing commences on 16th August.”
[17]On 14 August 2012 Barton Willmore sent an e-mail to the case officer at the Planning Inspectorate saying that the Pension Fund wanted to withdraw its representations on the appeal. In that e-mail Barton Willmore said: “I am writing to request that all representations made on behalf of my client Seymour Pension Fund Ltd in respect of the above appeal are withdrawn. We would ask that the Inspector disregards all comments that have been submitted on behalf of my client and that any correspondence from us in relation to this appeal is not taken into account as part of the overall decision making. In light of the above we no longer wish to speak and will no longer be present at the Hearing. …”.[18]The informal hearing was held on 16 August 2012. The inspector made his site visit on the same day.[19]Mr Lander was one of those who appeared for the third defendant at the hearing. In paragraph 17 of his witness statement he says that a “key issue” at the hearing was “the extent to which the current proposal would prejudice delivery of the wider proposals for the area”. He goes on to say:
“18. At one point on the site visit the Inspector observed that our scheme could provide a link to the informal path that already exists in the woodland belt to the north of the Canfor Road estate and which appears to comprise a proxy for the related proposal on the eco-village masterplan. I responded by asking him to bear in mind that the appellant did not control any land outside the site boundary to the west and that all he could therefore be asked to do was to provide a footpath to the Site boundary (which could be connected if feasible at a later date). In the circumstances I was in no position to take a contemporaneous note of these exchanges, but I do recall them clearly. 19. I believed the Inspector took this point, and I assume that is why his condition 8 does not require an actual connection to the current paths. 20. Moreover I conclude therefore that the Inspector considered the provision of footpaths and cycle-paths that joined the current paths to be desirable rather than necessary. 21. Notwithstanding the above, it is my opinion that the requirements of the Conditions are in fact entirely achievable.”

The inspector’s decision

[20]In his decision letter, in paragraph 2, the inspector explained the basis on which he was dealing with the proposals:
“The application is made in outline form. At this stage approval is sought for the principle of development. The only details for which approval is being sought are of one of the accesses proposed (on to Salhouse Road, for vehicles, pedestrians and cyclists). Details of other accesses, appearance, landscaping, layout and scale are not submitted for approval.”
[21]In paragraph 4 of his letter the inspector referred to the planning obligation that had been produced under section 106 of the 1990 Act:
“By the conclusion of the hearing, a signed and dated planning obligation had been submitted. In addition to providing for affordable housing and public open space, it would provide financial contributions to green infrastructure, and library and school expansion to serve the development. I am satisfied that these contributions would be proportionate to the scale of the development and, for the reasons stated in paragraphs 12 and 20, are necessary for the development to be found acceptable. The provisions of the agreement therefore comply with the CIL regulations and have been taken into account.”
[22]Dealing with “[the] principle of development”, the inspector noted (in paragraph 14 of his letter) that the parties had agreed that there was “not a supply of specific deliverable sites sufficient to provide five years’ worth of housing supply assessed against local requirements”. He mentioned (in paragraphs 15 and 16) the presumption in favour of sustainable development, now enshrined in the National Planning Policy Framework (“the NPPF”). He acknowledged (in paragraph 17) that one of the “core principles” of the NPPF was that “planning should be genuinely plan-led”. He noted that the Broadland District Local Plan (Replacement) adopted in May 2006 was still in force. Its Policy GS1, he said, “would permit development within defined settlement limits but refuse permission outside the limits”. The appeal site was “outside the defined development limits for Rackheath”. However, said the inspector, “in view of the housing supply situation, this provision of the development plan is clearly out-of-date”.[23]The inspector then (in paragraph 18) referred to the status of the joint core strategy:
“The Joint Core Strategy … was the subject of a legal challenge which resulted in up-to-date policies which would otherwise be relevant to this appeal being remitted for further consideration. Although they have been recently republished for public representation prior to resubmission to the Secretary of State, the previous challenge indicates that they are controversial and so there can be no presumption that they would eventually form part of the adopted development plan for the area. Although there remains the possibility that the preferred settlement pattern and housing quantities eventually adopted for Broadland may exclude this site, in effect the development plan must be regarded as absent or silent on this issue.”
[24]The inspector went on to consider how the loss of the “benefits of a plan-led approach” might be overcome. In paragraphs 19, 20 and 23 of his decision letter he said: “19. There is also concern that benefits of a plan-led approach would be lost if this appeal were allowed. An impression of what these might be can be obtained from three sources. In addition to both the unremitted and remitted policies of the [joint core strategy], the latter now republished for public representation, there is also the master plan for Rackheath, nominated for the location for an eco-town in annex A of the government’s Planning Policy [Statement]: Eco-towns; A supplement to Planning Policy Statement 1. 20. Examination of the sources establishes that the development and its accompanying [section] 106 obligation would provide (or could be required by condition (8) to provide) proportionately to its size all the benefits of a planned development set out in the remitted and unremitted policies of the [joint core strategy] or depicted in the Rackheath master plan except[:]• a contribution to a proposal for a new railway station at Rackheath. …• a Bus Rapid Transit route via Salhouse Road. …• [a] contribution to a new household waste recycling centre. … From this, it follows that although there is a presumption in favour of developing this site for housing, to allow this appeal now might lead to the loss of some of the benefits of the plan-led approach. However, there is no information of the timescale within which those projects would have progressed to a point where a proportion of their implementation costs could be ascribed to the current appeal proposal. … 23. I conclude that some of the benefits of a plan-led approach would be lost by allowing this appeal but most would be achieved through conditions or through the planning obligation. I have considered whether a restricted time-limit for the commencement of this development should be imposed so as to bring any renewal of permission into a time period where the full benefits of the plan-led approach could be captured but there is no information of a date by which the remaining benefits would have progressed to a point where the contributions expected from the development of this site could be identified. In any event it is clear that they would be so small as to be insignificant. Likewise, the quantity of development proposed in this appeal scheme is so small that it would have no prejudicial effect on the outcome of the [joint core strategy] preparation. The principle of development of this site for housing is therefore acceptable at the present time.”• a contribution to a proposal for a new railway station at Rackheath. …• a Bus Rapid Transit route via Salhouse Road. …• [a] contribution to a new household waste recycling centre. …[25]The inspector dealt with highway safety in paragraphs 24 to 28 of his decision letter. He said (in paragraph 25) that the accident statistics he had seen did not support the idea that Salhouse Road was “more dangerous than was normal”. The junction on to Salhouse Road “would be designed to the more demanding standards for visibility of the [Design Manual for Roads and Bridges] rather than the less demanding standards of [Manual for Streets] …” (ibid.). He referred (in paragraph 27) to the junction with Salhouse Road, which would be shared with the existing cul-de-sac serving a number of dwellings fronting on to Salhouse Road. The third defendant and the Council had agreed that the number of dwellings served by the single access should not be more than 100, so that the number of dwellings permitted on the appeal site would have to be limited to 80. This was to be achieved by condition (5). The inspector concluded (in paragraph 28) that, “[with] the appropriate conditions in place”, the development would not give rise to an unacceptable risk to highway safety.[26]The inspector imposed 13 conditions on the planning permission. Conditions 1, 4, 5, 8 and 9 are the relevant ones in these proceedings. They state: “1) Details of access (other than that onto Salhouse Road at number 65), appearance, landscaping, layout and scale, (hereinafter called “the reserved matters”) shall be submitted to and approved in writing by the local planning authority before any development begins and the development shall be carried out as approved. … 4) The access on to Salhouse Road hereby permitted shall be carried out in accordance with approved plan number 2510.02, revision E. 5) The details required by condition (1) shall not include provision for more than 80 dwellings. … 8) The details of access required by condition (1) shall include a pedestrian and cycle path from a point on the south-western boundary of the site suitable for connection into the existing path leading westwards through the tree belt to the rear of properties in Canfor Road to a point on the north eastern boundary of the site suitable for a connection onward to adjoining land and also a pedestrian and cycle path from a point on the south-eastern boundary of the site suitable for a connection into the existing trackway to the side of number 93 Salhouse Road to a connection with the above first mentioned pedestrian and cycle path. 9) Before any dwelling is first occupied, the road, footways and cycleways shown in the approved details of access shall have been completed in accordance with those approved details. …”.[27]The inspector explained his reasons for imposing the conditions in paragraph 36 of his decision letter:
“The first three conditions are required by law. The fourth is included for the reasons set out in paragraph 25 and because the design of the junction was varied during its consideration by the Council, so it is necessary to make clear which drawing is approved. Paragraph 27 explains the reason for condition number 5 … . Paragraph 20 explains that condition 8 would secure some of the benefits of a comprehensively planned development. Condition 9 is necessary to ensure that conditions 4 and 8 are effective. …”
.

The second application for planning permission

[28]In January 2013 the third defendant made a further application for planning permission for the same development, but omitting the provision of a path for pedestrians and cyclists to the rear of Canfor Road. The Council granted planning permission on that proposal on 17 June 2013. That planning permission was challenged by a claim for judicial review issued on 6 September 2013. On 4 October 2013 the parties in those proceedings agreed that the permission could not stand. However, the terms of a draft consent order have yet to be concluded. The somewhat tortuous history of those proceedings and these is described by the third defendant’s solicitor, Ms Linda Russell, in her witness statement of 11 September 2013, and the claimants’ solicitor, Mr Sebastian Charles, in his second witness statement, dated 4 October 2013.

The issues for the court

[29]There are three main issues for the court to decide:(1) whether the claimants have standing under section 288 as a “person aggrieved”;(2) whether the inspector erred in law in granting planning permission subject to condition 8, either because that condition did not secure access for pedestrians and cyclists by a path connecting the appeal site to adjacent land or because, in imposing it, the inspector took into account an immaterial consideration; and(3) whether the reasons the inspector gave were intelligible and adequate. Issue (1) – standing Submissions

Issue (1) – standing

[30]Ms Justine Thornton, who appeared for the Secretary of State, and Mr John Pugh-Smith, who appeared for the third defendant, submitted that none of the claimants was a “person aggrieved” within section 288 of the 1990 Act. The Pension Fund had withdrawn its objection to the third defendant’s application and appeal. In doing so it left no room for doubt about its position. It asked the inspector to disregard all the representations it had made. It knew perfectly well what it was doing. It had been advised and represented by planning consultants. In the background to the objection lay the feud between Phillip and Dennis Jeans. The claimants’ motive in pursuing these proceedings was the same as the Pension Fund’s in opposing the third defendant’s proposal – to exploit their ownership of the strip of land to the west of the appeal site. They thought this was a ransom strip, but it was not. They may now feel aggrieved, but this does not mean that they are a “person aggrieved” under section 288. To be a “person aggrieved” one must have taken part in the appeal against the refusal of planning permission by making objections to, or representations on, the development proposed, unless one has some reasonable explanation for not having done so (see Lord Reed’s judgment in Walton v Scottish Ministers [2012] UKSC 44, at paragraphs 86 and 87). Here there was no such explanation. The development was not going to have any physical effect on the claimants’ land or on its amenity.Nor can the claimants say they are aggrieved by some interference with their interests or rights.They have simply lost the chance to profit by holding the development to ransom(see Lardner v Renfrewshire Council 1997 S.C.L.R. 454, cited by Pill L.J. in Ashton v Secretary of State for Communities and Local Government [2010] EWCA Civ 600). This case is an example of the kind of conduct deprecated by Auld L.J. in R. (on the application of the Noble Organisation Ltd. v Thanet District Council [2006] 1 P. & C.R. 197 (at p.223) – the use of a legal challenge by a developer to frustrate or delay a rival’s development.[31]Mr Choongh submitted that the claimants have the standing they need to bring these proceedings. They clearly are, he said, a “person aggrieved” under section 288. The law on standing, both for applications under section 288 and in claims for judicial review, was comprehensively reviewed by the Supreme Court in Walton. It is now unsafe to rely on earlier authorities. The relevant facts here are not in dispute. As the owner and developer of adjoining land, and, in particular, because of their ownership of the ransom strip, the claimants had a proprietary and pecuniary interest in the outcome of the third defendant’s appeal. Theirs was a “genuine grievance” because the inspector’s decision prejudicially affected their interests (see paragraph 83 of Lord Reed’s judgment in Walton). If the inspector had imposed a condition requiring the provision of a pedestrian link to Canfor Road, the claimants’ ransom strip would be of considerable value. The planning permission did not impose such a requirement and has thus had the effect of devaluing the claimants’ property. A person whose property rights are harmed by an unlawful decision can be described as a “person aggrieved”. In the representations made on its behalf by Barton Willmore the Pension Fund had shown its concern for the proper planning of the area, including its doubts about the safety of the proposed arrangements for access to the development and its desire to see a path for cyclists and pedestrians created across the appeal site and connected to adjoining land. It made no difference to the claimants’ standing that they had not taken part in the appeal process after they withdrew their objection. Their interests were no different, and the effect of the inspector’s decision on those interests was no different either.

Discussion

[32]The law on standing in statutory challenges to planning decisions was comprehensively reviewed by the Supreme Court in Walton (in the judgment of Lord Reed, at paragraphs 82 to 96; in the judgment of Lord Carnwath, at paragraphs 102 and 103; and in the judgment of Lord Hope, at paragraphs 151 to 154).[33]It is not necessary to quote all that was said in that case about the concept of a “person aggrieved”. What I must do is apply the principles to the facts. As is plain in the judgments of Lord Reed and Lord Hope, deciding whether someone qualifies as a “person aggrieved” under the relevant statutory scheme will always require the court to look at the circumstances of the case in hand.[34]In Ashton the Court of Appeal endorsed the conclusion of the judge at first instance that the applicant could not properly be described as a “person aggrieved”. The proposal was for a mixed use development in Waterloo, including a 43-storey residential tower. The appellant said the tower would cast a shadow over the balcony of his flat and block his view of the London Eye and the Palace of Westminster. He had attended the inquiry at which the called-in application for planning permission was considered. But he had made no representations objecting to the proposed development. It was held that he had not played a sufficiently active role in the planning process to be regarded as a “person aggrieved” (see paragraphs 28 to 56 of the judgment of Pill L.J., with whom Moore-Bick and Maurice Kay L.JJ. agreed).[35]In this case the facts are, on any view, somewhat unusual. It will not be often that an objector to a proposed development makes detailed representations objecting to the grant of planning permission when the application is before the local planning authority, and repeats those representations in opposition to the ensuing appeal, only to withdraw them before the appeal comes to a hearing, asking the inspector to pay no attention to them, but then, when the appeal succeeds and the proposal is approved, makes an application to the court seeking an order to quash the decision.[36]Those facts test the principles affirmed and explained by the Supreme Court in Walton.[37]A “person aggrieved” in section 288 of the 1990 Act, as in other statutory contexts, is somebody who has a particular grievance about a particular decision. I agree with Mr Choongh that one must start by acknowledging how broad the concept is. Lord Reed(in paragraphs 83 and 85 of his judgment in Walton) endorsed Lord Denning’sobservation in Attorney-General of the Gambia v N’Jie [1961] A.C. 617 (at p.634) that it is “of wide import and should not be subjected to a restrictive interpretation”.A legal grievance, of the kind referred to in earlier authorities such as Ex parte Sidebotham (1880) 14 Ch. D. 458 was not the only sort of complaint that would bring one within it.The person who will never be a “person aggrieved” is the “mere busybody”, who is, as Lord Denning put it, “interfering in things which do not concern him” (ibid.). But a person who has “a genuine grievance because an order has been made which prejudicially affects his interests” is not excluded (ibid.).[38]As Lord Reed stressed (in paragraph 84 of his judgment in Walton), the meaning of the concept will vary according to the particular context. Therefore, as had been said in Lardner, it was “necessary to have regard to the particular legislation involved, and the nature of the grounds on which the appellant claims to be aggrieved”. Lord Reed made the same point (in paragraph 92) when considering standing to invoke the court’s supervisory jurisdiction under the common law, and, in particular, the concept of “a person affected by or having a reasonable concern in the matter to which the application relates”.[39]In the light of the relevant case law Lord Reed said (in paragraph 86) that “persons will ordinarily be regarded as aggrieved if they made objections or representations as part of the procedure which preceded the decision challenged, and their complaint is that the decision was not properly made”.This was not said to be a prerequisite for being a “person aggrieved”. Section 288 does not state that a person must have taken part in the relevant process if he or she is to have standing to challenge the ultimate decision. An individual might be a “person aggrieved” even if he or she had not become involved. As Lord Reed pointed out (in paragraph 87), “[the] authorities also demonstrate that there are circumstances in which a person who has not participated in the process may nonetheless be “aggrieved””. But the example he gave was of a person who would have taken part in the process, or at least might have been expected to do so, had he or she not been misled by “an inadequate description of the development in the application and advertisement so that he did not object or take part in the inquiry”. Lord Reed said that “[ordinarily], … it will be relevant to consider whether the applicant stated his objection at the appropriate stage of the statutory procedure, since that procedure is designed to allow objections to be made and a decision then to be reached within a reasonable time, as intended by Parliament” (ibid.).[40]In Lardner the Lord President said (at p.457): “[The appellant] is a member of the public who has an interest in what happens to the site because it is near him and he uses it, but on the other hand he did not avail himself of the opportunities which Parliament has afforded for participating in the process for adopting the local plan. … The particular circumstances of any case require to be considered and the question must always be whether the appellant can properly be said to be aggrieved by what has happened. In deciding that question it will usually be a relevant factor that, through no fault of the council, the appellant has failed to state his objection at the appropriate stage of the procedure laid down by Parliament since that procedure is designed to allow objections and problems to be aired and a decision then to be reached by the council. The nature of the grounds on which the appellant claims to be aggrieved may also be relevant. We express no view on the merits of those advanced by the appellant, but we observe that they all relate to matters which he could have put, or endeavoured to put, to the council or to the reporter at the inquiry. Had he done so, his objections could have been considered at the due time. Instead of that, the appellant now seeks to have these issues reopened after the decision has been taken in accordance with the prescribed procedure. In these circumstances, having regard both to the nature of his interest in the site and to his failure to take the necessary steps to state these objections at the due time, the appellant cannot properly be regarded as a ‘person aggrieved’ …”.[41]Lord Carnwath (in paragraph 103 of his judgment in Walton) referred to “the widening of rules of standing”. He said (ibid.) that the courts may properly accept as “aggrieved”, or as having a “sufficient interest”, those who, “though not themselves directly affected, are legitimately concerned about damage to wider public interests, such as the protection of the environment”. Lord Hope (in paragraph 152 of his judgment) referred to two kinds of person who might have standing: first, “an individual … personally affected in his private interests by the environmental issues to which an application for planning permission may give rise”, such as “[noise] and disturbance to the visual amenity of his property”, and second, someone who is not affected in that way but who shares with others a “legitimate concern” for the environment. But he said (in paragraph 153) that “this must not be seen as an invitation to the busybody to question the validity of the scheme or order under the statute just because he objects to the scheme of the development”. Those who sought to do that “on environmental grounds” would have to “demonstrate that they have a genuine interest in the aspects of the environment that they seek to protect …”.[42]In Walton the appellant did not have any direct personal or property interest in the outcome of the process. The project was a peripheral road designed to improve the highway network in Aberdeen. The appellant lived near a section of the highway network that was expected to carry more traffic if the proposed road was built. He was the chairman of a local organisation whose purpose was to resist the project on environmental grounds, as well as being an active member of other organisations concerned with the environment. He made representations objecting to the scheme. He took part in the public inquiry at which it was considered. As Lord Reed said (in paragraph 88 of his judgment), he had “demonstrated a genuine concern about what he contends is an illegality in the grant of consent for a development which is bound to have a significant impact on the natural environment”. He was “indubitably a person aggrieved within the meaning of the legislation” (ibid.). Lord Hope agreed. He said (in paragraph 154 of his judgment) that it would be wrong to reject the applicant’s “entitlement to bring his application on environmental grounds simply because he cannot show that his own interests would be substantially prejudiced”.[43]The facts here are different. When it objected to the proposed development the Pension Fund ostensibly had, as Lord Hope put it in paragraph 153 of his judgment in Walton, “a genuine interest in the aspects of the environment that [it sought] to protect”. Its planning consultants, Barton Willmore, made lengthy representations on the planning merits in their letter of 10 February 2012. Both in that letter and later in correspondence with the Planning Inspectorate they mentioned that the Pension Fund owned land over which an access to the development would have to be taken if it came off Canfor Road. If that objection had been maintained the claimants could have said that they had taken an active part in both the application and the appeal processes.[44]But what is the position when somebody has taken part in an application or appeal process and then not merely stops taking part but also withdraws the representations he has put in, and asks the decision-maker to ignore them altogether? It could be said, of course, as Lord Reed put it in paragraph 86 of his judgment in Walton, that this person had “made objections or representations as part of the procedure which preceded the decision challenged”, and had in that way participated in the process. But I do not think it could be said that the withdrawal of his objection was itself an act of participation. It would be more realistic to say that, having withdrawn his objection, this person was then effectively in the same position as he would have been in had he chosen to make no representations at all – like the appellant in Lardner. He could not say he had been unaware of the application or the appeal because of some slip of procedure, or unaware of what was proposed because the development had been inaccurately described. By his own actions he would have shown that he had understood both the development and the process. Indeed, by the time the decision was made, not only would he have ceased to be an objector to the development; he would have made it clear that he had no objection.[45]That was what happened here. By withdrawing its objection to the proposed development, and the representations it had made, the Pension Fund left nothing before the inspector to show either that it had any relevant concern for the environment or for the proper planning of the area, or about the way in which the development might affect any property or commercial interest it sought to protect or promote. It did not go so far as to support the thirddefendant’s appeal. But Barton Willmore’s e-mail to the Planning Inspectorate of 14 August 2012 was unequivocal. It showed that the Pension Fund could now see no reason to pursue any objection to the development proposed.[46]It is not for the court to speculate about the real reason why the objection was withdrawn when it was, and in the way that it was. But one thing is clear. The claimants’ purpose now is to realize a ransom value for their strip of land. They could only have managed that in the appeal if planning permission had been granted subject to a condition that would have left the third defendant with no choice but to negotiate a deal with them, or if permission had been refused because the inspector was not prepared to grant it subject to such a condition. The condition would presumably have been in “Grampian” form, preventing the development being begun, or the new housing being occupied, until a connection for pedestrians and cyclists had been made from the appeal site across the claimants’ land to the housing in Canfor Road. But the claimants did not urge the inspector either to grant permission subject to a “Grampian” condition or to refuse it. They chose not to.[47]It follows, in my view, that the highest the claimants can now put their case on standing is this. Though they had abandoned their objection to the third defendant’s proposal, dropped out of the appeal process, and then said nothing to the inspector about any planning concern or any private interest of their own, or about the conditions he should impose if he granted planning permission, they were still hoping his decision would yield them a ransom, but became a “person aggrieved” when it did not. That is not an attractive argument. And I do not accept it. In truth, the claimants’ only source of grievance lies in the fact that they had hoped for a ransom, which now they will not have.Their expectation of gain has turned out to be false. But their hope of a ransom was not, apparently, something they wanted to impress on the inspector, even in the guise of a planning objection. One can understand why. It had no planning significance at all. Whether the claimants were told this by those advising them at the time I do not know. At any rate they did not want to say anything to the inspector, altruistic or self-seeking, when they had the chance to do so. They did not try to influence his decision at all. They may now wish that they had. But these proceedings are entirely opportunistic. In the particular –and peculiar –circumstances of this case, I cannot accept that the claimants are a “person aggrieved”.[48]I would therefore refuse this application for the claimants’ lack of standing to pursue proceedings under section 288, which is the only form of challenge available for an attack on the inspector’s decision. Whether in other circumstances they would have had standing to challenge some other decision by a claim for judicial review is not a question I have to consider. In Walton Lord Reed said (in paragraph 96 of his judgment) that the various factors that entitled the appellant to bring his application as a “person aggrieved” would also “[mutatis] mutandis” have given him standing to seek judicial review. But that does not affect my conclusion that in the circumstances of the case before me the claimants are not a “person aggrieved” under section 288.[49]It follows from my conclusion on standing that the claimants’ application must fail. Understandably, however, all three parties active in the proceedings urged me to deal with the substantive merits in any event. And I shall do so. Issue (2) – condition 8 Submissions

Issue (2) – condition 8

[50]Mr Choongh submitted that in granting planning permission subject to condition 8 the inspector took into account an immaterial consideration. The inspector said in paragraph 20 of his decision letter that condition 8 would provide “all the benefits of planned development” except three. Those three benefits are irrelevant in these proceedings. The planning policy on which the inspector relied was in the joint core strategy, in particular Policy 12, and the Rackheath master plan.He plainly intended condition 8 to provide “connectivity” between the appeal site and the development on neighbouring land, including the housing on Canfor Road. Securing the “connectivity benefits” required by Policy 12 was, in his view, essential. Unless this was done his decision would be inconsistent with the “plan-led” approach. There would have been no point in imposing condition 8 unless it secured the required connections between paths on the appeal site and paths on adjacent land.The problem is that condition 8 does not do that, whereas the inspector assumed it would. It requires a path “suitable for connection” into Canfor Road. The third defendant has no rights over the strip between the site and Canfor Road. Its development will include a path leading to a “dead end” at the site boundary.The inspector’s assumption that condition 8 would provide connectivity between this site and the adjacent site was an important factor in his decision. But the assumption was wrong, and lacked support in evidence. The inspector thus had regard to an immaterial consideration. This was unlawful (see Seddon Properties Ltd v Secretary of State for the Environment and Macclesfield Borough Council [1978] J.P.L. 835). The decision ought therefore to be quashed (see Cheesecake Shop Ltd. v Secretary of State for Communities and Local Government [2009] EWHC 1748 (Admin)).[51]Ms Thornton and Mr Pugh-Smith submittedthat there is nothing unlawful about condition 8, or the planning judgment made by the inspector in concluding that a condition in those terms was appropriate.The condition was imposed to ensure that a benefit consistent with relevant planning policy would be provided by the development. There is nothing unlawful about it. The claimant’s argument is misconceived. As the inspector said in his decision letter, he imposed condition 8 to address the concern that “the benefits of a plan-led approach” would be lost if he granted planning permission. He had regard to relevant policy in the joint core strategy, in particular Policy 12. He also had regard to the Rackheath master plan. He concluded that condition 8 would provide one of the benefits of a plan-led approach (see paragraphs 20 and 36 of the decision letter). It is wrong to suggest that the condition is unlawful because it did not ensure a connection between the path on site and the housing in Canfor Road, through the strip of land owned by the claimants and the woodland owned by the Council. The inspector could not impose a condition requiring the third defendant to undertake work on land it did not own. The claimants had changed their case. They knew they could not argue that the inspector’s decision was perverse. Now they were saying he took into account an immaterial consideration, namely his assumption that condition 8 would secure “connectivity”. This is wrong. The inspector did not think he was imposing a condition that would oblige the third defendant to create a connection to land outside the appeal site. He did not say that. Nor can one infer it from anything he did say. No policy required it. The inspector did not mislead himself about the effect of condition 8. He referred in paragraph 20 of his decision letter to the development providing “proportionately to its size all the benefits of a planned development set out in the … [joint core strategy] or depicted in the Rackheath master plan …”. There is nothing to suggest that he thought the condition would, or should, do any more than it says.

Discussion

[52]The claimants’ challenge engages familiar principles of planning law. These need not all be recited here. But I should recall the classic description of a planning decision-maker’s power to impose conditions, stated by the House of Lords in Newbury District Council v Secretary of State [1981] A.C. 578. First, a condition must be imposed for a planning purpose, and not for any ulterior purpose; secondly, it must fairly and reasonably relate to the development permitted; and thirdly, it must not be so unreasonable that no reasonable planning authority could have imposed it (see, in particular, the speech of Viscount Dilhorne at pp.599 and 600).[53]I cannot see how any of the conditions imposed by the inspector in this case could be said to conflict with those principles, or with government policy in Circular 11/95 “The Use of Conditions in Planning Permissions”.Mr Choongh did not argue that condition 8 failed any of the three Newbury tests. He did not say the condition was unreasonable, or unrelated to the development permitted, or imposed for a purpose that did not relate to planning. He did not say it was imprecise or unintelligible. Nor did he submit that, together with condition 9, it would be unenforceable or ineffective to ensure that pedestrian and cycle paths were provided in the places and along the routes to which it referred.There can be no doubt that this is what the inspector was seeking to do. And he did it. Condition 8 adopts a simple formula in referring to the two paths required. This formula, used three times in the condition, is “suitable for connection”, or “suitable for a connection”, either into an existing path or track on adjoining land or on to such land. The required routes are all specified. The condition is perfectly precise and clear.It is, in every respect, a lawful planning condition.[54]In making his decision on the third defendant’s appeal, and in deciding what conditions ought to be imposed on the planning permission, the inspector was making a series of planning judgments. In proceedings under section 288 of the 1990 Act the court cannot upset a planning decision-maker’s planning judgment in the absence of some clearly identified public law error. Here, in my view, there was no such error.[55]As all three parties agreed, there is an essential difference between the concept of connectivity and that of connectibility. The difference is important in this case. According to the definition in the New Shorter Oxford English Dictionary, “connectivity” is “the state, property, or degree of being (inter) connected”. “Connectibility” is “the quality of being connectible”, which means “able to be connected”.[56]It is clear from his decision letter that the inspector understood the distinction between those two concepts. What he sought to achieve in condition 8, and did achieve, was connectibility rather than connectivity. He did not have to express himself in those terms to make that absolutely plain.[57]Mr Choongh submitted, in effect, that the inspector should have imposed a condition to secure connectivity, and that he thought he was doing this – though he obviously did not.[58]I do not think that argument is tenable.[59]First, the premise is wrong. The inspector did not conclude that “the benefits of a plan-led approach” (as he put it in paragraphs 19, 20 and 23 of his decision letter) or “the benefits of a planned development” (as he put it in paragraph 20) could only be realized, or that the proposed development could only be consistent with such an approach, if a condition was imposed requiring paths for pedestrians and cyclists to be provided across the appeal site and connected to paths on land outside the site. I do not think one can read into paragraphs 19, 20, 23 and 36 of the decision letter a conclusion that this development could or should do that. The inspector said nothing of the sort. One must take both his assessment and condition 8 at face value. Condition 8 is clearly intended to make it possible for connections to be made between paths created on the routes described and paths on adjacent land at either end of the appeal site. That is what it does. There is nothing in the decision letter to suggest the inspector was trying to achieve anything else.He did not say he was aiming to secure connections between paths on the appeal site and paths beyond its boundaries, or that he thought this was what condition 8 would do. The submission that he had regard to such an assumption or belief is simply wrong as a matter of fact. He did not take into account any immaterial consideration.[60]Secondly, it is clear from paragraphs 19, 20, 23 and 36 of the decision letter that the inspector wanted to secure benefits that might otherwise be achieved by the “plan-led approach”, but only so far as it was right to do so in the decision he was making. The requirements of condition 8 are in no way inconsistent with what he said in those four paragraphs.When he imposed that condition he was imposing a requirement that he plainly thought was necessary and reasonable in the circumstances. He was free to do that. It was open to him, in the light of the evidence before him, to grant planning permission subject to a condition that did not hold the development in suspense while the paths for pedestrians and cyclists on the appeal site were connected to paths on other land that was not in the third defendant’s control.He was careful to say, in paragraph 20 of his letter, that the proposed development could be required to provide the benefits of a planned development “proportionately to its size”. The only sensible way to read this, I believe, is that he was taking a pragmatic approach. He gauged the benefit that could be expected from this development on this site at this time. That was in my view an unimpeachable planning judgment. The weight the inspector gave to the various considerations that went into that judgment was for him, not the court, to decide.[61]Thirdly, as is clear from paragraphs 24 to 28 of the decision letter, the inspector was satisfied with the proposed access arrangements for the development. He did not find those arrangements unsafe for pedestrians or cyclists, or that the pedestrian and cycle paths referred to in condition 8 were necessary to ensure that pedestrians and cyclists would be safe.[62]Fourthly, there was, so far as I can see, no evidence before the inspector that would have justified the imposition of a “Grampian” condition to prevent the development being implemented or the new housing being occupied until connections to paths outside the site had been made. A condition requiring work to be done by the third defendant on land owned by someone else would clearly have been inappropriate. And there were no representations before the inspector in which such a condition was suggested. None of the conditions in the planning permission exposed the development to the risk of its being delayed or frustrated bythe owner of any other land. In the inspector’s opinion conditions 8 and 9 went far enough. The benefit that those conditions would help to bring forward, through the co-operation of other landowners and developers, was one to which Policy 12 of the joint core strategy referred – the “establishment of a comprehensive cycle and walking network”. But the inspector clearly did not want to delay this development until that aspiration had been met. Given the presumption in favour of developing the site for housing, to which he referred at the end of paragraph 20 of his decision letter, he was prepared to take the approach he did. I cannot see anything wrong in law with that.[63]And fifthly, as all three parties agreed, there was no policy or guidance that compelled the inspector to impose a condition more onerous than condition 8. The development plan did not contain any requirement for development on the appeal site to provide a path on the route indicated on the Rackheath master plan. The extant Broadland District Local Plan (Replacement) did not do that. Nor did Policy 12 of the joint core strategy. It expressed broad strategic aims, including the creation of paths for pedestrians and cyclists. But it did not require the development of particular sites to deliver any specific route.Nor did the Rackheath master plan.[64]In my view the inspector did not err in law in imposing condition 8. He did not fail to have regard to any material consideration, and he did not have regard to any consideration that was immaterial. There was nothing unlawful about the condition itself. The planning judgments that led the inspector to impose it were not unreasonable.[65]Mr Choongh’s argument on this issue, the main thrust of the claimants’ case, therefore fails. Issue (3) – reasons Submissions

Issue (3) – reasons

[66]Mr Choongh submitted that the inspector failedto give proper reasons for not imposing a condition to ensure the development would provide paths for pedestrians and cyclists connected to paths on adjoining land, or reasons to explain why he thought such a condition was unnecessary. If he did not think a connection between the development on the appeal site and the housing in Canfor Road was important he ought to have explained why, given his conclusions in paragraphs 20 and 23 of his decision letter.[67]Ms Thornton and Mr Pugh-Smith submitted that the inspector’s reasons are both intelligible and adequate. He did not need to explain why a condition requiring paths on the appeal site to be connected to paths on land owned outside the third defendant’s ownership or control was neither reasonable nor necessary. To impose such a condition would have been wrong in principle, policy did not require it, and nobody was urging the inspector to impose one.

Discussion

[68]The law requires reasons that are intelligible and adequate, which enable one to understand why the decision was as it was, and what the decision-maker’s conclusions were on the main controversial issues (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council v Porter [2004] UKHL 33, at paragraph 36).[69]In this case the inspector’s decision letter comfortably passes those tests. There can be no sensible criticism of the reasons he gave. He made clear that in his view, as he said in paragraph 36 of his decision letter and for the reasons he gave in paragraph 20, “condition 8 would secure some of the benefits of a comprehensively planned development”. This obviously means what it says: “some” of those benefits, but not all of them. Read fairly as a whole, the inspector’s reasons explain why the development was acceptable with the restrictions and requirements he placed upon it, together with the commitments offered by the third defendant in the section 106 obligation. He placed his assessment of the proposed development within the relevant policy context, including the joint core strategy and the Rackheath master plan. And he explained, in that context, why he was able to grant planning permission and why he imposed the conditions he did. It was not his task to give further reasons to explain why he did not make a different decision or impose different conditions. The reasons he gave for the decision he did make and for the conditions he did impose were neither unclear nor deficient.[70]I therefore reject Mr Choongh’s submissions on this issue. Discretion and severability Submissions

Discretion and severability

[71]Ms Thornton and Mr Pugh-Smith submitted that if I were to find that condition 8 was unlawfully imposed I should nevertheless withhold relief. The third defendant has the benefit of the planning permission and does not complain about the condition. The viability of the development is not affected by it. And it could be severed from the planning permission without vitiating the grant itself.[72]Mr Choongh did not accept that the court’s discretion could be exercised to save the planning permission. Nor did he concede that the condition was severable.

Discussion

[73]It follows from my conclusions on the previous two issues that the question of my exercising the court’s discretion not to grant relief, and the question of whether condition 8 is a severable condition, which could be removed from the planning permission without the permission itself having to fall, do not arise.[74]Had I concluded that condition 8 failed to do what the inspector sought to achieve by imposing it, and that it was therefore unlawfully imposed, I would not have been inclined to withhold relief. I could only have regarded the condition as severable from the planning permission if I had also concluded that the inspector would have granted permission without a condition requiring the creation of paths for pedestrians and cyclists on the appeal site. On the material before me, and in the light of the inspector’s assessment of the merits of the proposal, I do not think that that is a conclusion I could have reached. But, given my conclusions on the main issues in the case, the point is academic.

Conclusion

[75]In proceedings under section 288 of the 1990 Act, unlike claims for judicial review and appeals in enforcement cases under section 289, there is no permission filter. There is therefore no way in which the court can prevent the delay and expense involved in clearly unmeritorious cases going to a full hearing. I think this is such a case. But anyway, for the reasons I have given, the application must be dismissed.