Cheshire East Borough Council v Secretary of State for Communities and Local Government & Ors [2013] EWHC 892 (Admin)

Case No CO/102732/2012[2013] EWHC 892 (Admin)IN THE HIGH COURT OF JUSTICEQUEEN’S BENCH DIVISIONVenue ADMINISTRTAIVE COURT IN BIRMINGHAM, Birmingham Civil Justice CentrePriory Courts33 Bull StreetVenue BirminghamB4 6DSDate 20 th March 2013
Before
MR JUSTICE HICKINBOTTOM
Between
CHESHIRE EAST BOROUGH COUNCILClaimantTHE SECRETARY OF STATE FORDefendantCOMMUNITIES AND LOCAL GOVERNMENTDefendantNORMAN DALEDefendantMRS MILDRED DALEDefendant
Transcript provided by:PosibOfficial transcribers to Her Majesty’s Courts and Tribunals ServiceY Gilfach, Ffordd y Pentre, Nercwys, Flintshire, CH7 4ELDX26560 MOLDTel: 01352 757273 Fax: 01352 757252translation@posib.co.uk www.posib.co.uk
Anthony Crean QC (instructed by Messrs Shoesmiths) for ClaimantJames Maurici (instructed by the Treasury Solicitor) for First DefendantPaul Tucker QC (instructed by Messrs Aaron & Partners LLP) for Second and Third Defendants
Judgment

Introduction

[1]Until his death in November 2012, Norman Dale and his wife Mildred owned Loachwood Farm, Congleton, which they had farmed for many years. The farm was jointly owned and, since Mr Dale’s death, Mrs Dale has owned the entire freehold.[2]On 21 February 2011, they submitted an application to their local planning authority, the Claimant Council (“the Council”), for planning permission for up to two hundred dwellings, highways and associated works on part of their farmland. Gladman Developments Limited has an Option and Promotion Agreement with them to purchase the site, exercisable upon the grant of planning permission.[3]On 28 July 2011, the Council refused planning permission. The Dales appealed under section 78 of the Town and Country Planning Act 1990 (“the 1990 Act”), and the First Defendant Secretary of State appointed an inspector Andrew Jeyes (“the Inspector”) to conduct and determine the appeal. He held a public inquiry over five days between 13 December 2011 and 10 February 2012. On 18 August 2012, he issued a decision letter, allowing the appeal and granting outline planning permission for the proposed development.[4]On 28 September 2012, the Council commenced this claim under section 288 of the 1990 Act, to quash that decision.[5]The claim has not had a conventional course. On 15 October 2012, Mr and Mrs Dale issued an application to strike out the claim as having no reasonable prospect of success. That prompted the Council, on 12 March 2013, to do two things. First, it abandoned its claim as original cast and, in a skeleton argument, reformulated its claim on different, if somewhat overlapping, grounds. Second, it issued its own cross-application for summary judgment. Those cross-applications were listed to be heard today, 20 March 2013, for half a day. Last week, having seen the Claimant’s applications and the skeleton arguments, I directed there be a hearing for directions on Thursday last, 14 March. At that hearing, I ordered that the applications for amendment, strike out and summary judgment be set down for a hearing of one day, today, on a rolled-up basis, i.e. with the substantive hearing of the section 288 application, if necessary, being dealt with at the same hearing as those applications; so that this claim would be ultimately determined, one way or another, at a single hearing. I thank the parties (and, if I may, particular Counsel) for their cooperation and industry, which have ensured that this hearing has been an effective one.[6]The parties have made submissions on the principles on which amendments to a section 288 claim should be allowed, and the circumstances in which such a claim should be struck out or alternatively allowed on a summary basis. However, all are agreed that the merits of the claims, as the Claimant now wishes to pursue them, are at the heart of each of these applications. I shall consequently start with those merits, and leave to one side for the moment the various procedural issues.

The Grounds of Challenege

[7]As originally put, the Claimant’s claim involved a widespread attack on the Inspector’s decision for failing to recognise an alleged sea-change in the proper approach to planning decisions brought about by the Localism Act 2011, which, it was said, required the local planning authority to be “in the driving seat of spatial planning for its area, including housing land provisions.” However, that contention, in more or less identical terms, was considered recently in this court by Males J in Tewkesbury Borough Council v Secretary of State for Communities and Local Government [2013] EWHC 286 (Admin), a judgment which refutes it in comprehensive terms. It is no longer pursued by the Claimant in this claim, and I need say no more about it other than to acknowledge the wisdom of its abandonment.[8]The Claimant now wishes to pursue, and to pursue only, two far more discrete grounds of challenge to the inspector’s decision, as follows.[9]First, on 21 February 2011, the Council adopted and published a document entitled “Interim Planning Policy on the Release of Housing Land” (“the IPP”), which was adopted pending the formulation and adoption of a Local Development Framework Core Strategy. The Claimant contends that the Inspector misunderstood the Council’s case with regard to the IPP, which was that, within a relatively short period of time, the IPP (which had been the subject of public consultation, sustainability appraisal and habitat regulations assessment, and had been adopted by the Council) would make up the shortfall in deficit in housing land supply; with the result that it was irrational for the Inspector to have given the IPP only “limited weight”, as he did; or, alternatively, the Inspector failed adequately to explain why he had given the IPP only that degree of weight.[10]Second, it is submitted on behalf of the Council that the Inspector misunderstood, and hence misapplied, the relevant national guidance with regard to a local planning authority’s obligation to demonstrate periods of housing land supply.

The Relevant Legal Background

[11]The relevant general legal background is uncontroversial. In relation to planning determinations generally, whether by a local planning authority or by an inspector on behalf of the Secretary of State on appeal, the following propositions relevant to this claim are well established:(i) In determining a planning application, the decision-maker must take into account all material considerations (section 70 of the 1990 Act). Policy guidance by the Secretary of State is a material consideration, albeit one that is the subject of particular provision to which I shall come shortly.(ii) Whilst he must take into account all material considerations, the weight to be given to such considerations is exclusively a matter of planning judgment for the decision-maker, who is entitled to give a material consideration whatever weight (if any) he considers appropriate, subject only to his decision not being not being irrational, in the sense of Wednesbury unreasonable (Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759 at page 780 f-g). The courts have consequently left such decisions to be taken by the appointed decision-maker on the basis of guidance promulgated by the Secretary of State (see, e.g., R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23 at [60] per Lord Nolan, [129] per Lord Hoffmann and [159] per Lord Clyde. As a result, a challenge to an inspector’s determination on the basis that it is irrational has been said to be “a particularly daunting challenge” (R (Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 74 (Admin) at [8] per Sullivan J (as he then was)).(iii) A decision-maker must interpret national policy properly. The true interpretation of such policy is an objective matter of law for the court (Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 especially at [18] per Lord Reed). Where a decision-maker has misunderstood a policy (including a plan), that may found a challenge to his decision if that misunderstanding is material, i.e. if his decision would or might have been different if he had properly understood matters (Somerset District Council v Secretary of State for the Environment [1993] 11 PLR 80 at page 82Hper Hoffmann LJ).(iv) An inspector’s decision cannot be subjected to the sort of exegesis that might be appropriate for a statute or a deed or a contract (the Dundee case at [19] per Lord Reed). It must be read as a whole and in a practical and common sense way; in the knowledge that it is addressed to the parties, who will be well aware of the issues and the arguments deployed at the inspector’s inquiry, so that it is not necessary to rehearse every argument, but only the principal controversial issues. Reasons for a decision must be sufficient to enable a party to understand how any such issue of fact or law has been resolved, but no more is lawfully required. In any event, a reasons challenge will only succeed if the failure to provide an adequately reasoned decision results in substantial prejudice to an aggrieved party (see Seddon Properties Ltd v Secretary of State for the Environment [1978] 42 P&CR 26at page 28 per Forbes J, the South Somerset case at page 83 per Hoffmann LJ, and South Bucks District Council v Porter (No 2) [2004] UKHL 33 at [36] per Lord Brown).

The Statutory Framework

[12]Again, the relevant law is uncontentious. It was helpfully set out at some length in the judgment of Males J in the Tewkesbury case. For the purposes of this claim, I can be somewhat shorter, but I gratefully acknowledge my debt to Males J for setting out the relevant provisions in that judgment with clarity and completeness.[13]Section 70(2) of the 1990 Act as amended by section 143 of the Localism Act 2010 provides that, in dealing with a planning application the authority (or an inspector who conducts an appeal on behalf of the Secretary of State) must have regard to the provisions of “the development plan”, as well as local finance considerations and, as I have already indicated, “any other material consideration”. Section 38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) provides that:
“If regard is to be had to the development plan for the purpose of any determination to be made under the Planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”
In other words, there is a presumption that any decision on an application for planning permission will be taken in accordance with the development plan; but that presumption can be rebutted by other “material considerations”.[14]I will return shortly to the development plan in this case, but generally “material considerations” in this context include statements of central government policy set out in Planning Guidance Notes and Statements and, since March 2012, the National Planning Policy Framework (“the NPPF”) which replaced many earlier policy documents. The NPPF came into effect after the public inquiry in this case, but before the Inspector’s decision. The Inspector gave the parties an opportunity to make submissions on its effect in this case, and he applied the NPPF in determining the appeal. He was right to do so (Jefferson v The National Assembly of Wales [2007] EWHC 3351 (Admin)).[15]Reflecting a long-standing central government policy of requiring local authorities to maintain a five year supply of deliverable housing land, paragraphs 47 and following of the NPPF provide, under the cross heading “Delivering a wide choice of high quality homes”, as follows:
“47. To boost significantly the supply of housing, local planning authorities should: • use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period; • identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land. Where there has been a record of persistent under delivery of housing, local planning authorities should increase the buffer to 20% (moved forward from later in the plan period) to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market for land; • identify a supply of specific, developable sites or broad locations for growth, for years 6-10 and, where possible, for years 11-15; • for market and affordable housing, illustrate the expected rate of housing delivery through a housing trajectory for the plan period and set out a housing implementation strategy for the full range of housing describing how they will maintain delivery of a five-year supply of housing land to meet their housing target; and • set out their own approach to housing density to reflect local circumstances.” 48. Local planning authorities may make allowance for windfall sites in the five-year supply ….. 49. Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.” • use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period; • identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land. Where there has been a record of persistent under delivery of housing, local planning authorities should increase the buffer to 20% (moved forward from later in the plan period) to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market for land; • identify a supply of specific, developable sites or broad locations for growth, for years 6-10 and, where possible, for years 11-15; • for market and affordable housing, illustrate the expected rate of housing delivery through a housing trajectory for the plan period and set out a housing implementation strategy for the full range of housing describing how they will maintain delivery of a five-year supply of housing land to meet their housing target; and • set out their own approach to housing density to reflect local circumstances.”
[16]Consequently, if a local planning authority cannot demonstrate a five year supply of housing land, then(i) relevant housing policies are to be regarded as out of date, and hence at best of restricted weight; and(ii) there is a presumption of granting permission unless the adverse impacts of granting permission significantly and demonstrably outweigh the benefits, or other NPPF policies indicate that development should be restricted in any event. That presumption is, again, not irrebuttable: it may be rebutted by other material considerations.[17]A second policy of importance to this claim is that relating to prematurity. Males J identified the potential problem in paragraph 22 of his judgment in the Tewkesbury case, thus:
“The [2004 Act] required planning authorities to produce Local Development Documents. Inevitably, however, the process of agreeing a development plan takes time. In the meanwhile, applications for planning permission will continue to be made. The question therefore arises how such applications should be dealt with when a development plan is in the process of being established. On the one hand, the mere fact that no plan has yet been adopted cannot be allowed to prevent any new development. On the other, planning permission should not be granted in circumstances (or, in the jargon, such permission would be “premature”) where that would pre-empt or prejudice an emerging development plan.”
[18]As Males J proceeds to say, this tension is addressed in another central government policy guidance document, “The Planning System General Principles” (“the Planning GPs”). Paragraph 17-19 of the Planning GPs read as follows:
“17. It may be justifiable to refuse planning permission on grounds of prematurity where a DPD [i.e. development plan document] 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 pre-determining decisions about the scale, location or phasing of new developments which are being addressed in the policy in the DPD. 18. Otherwise, refusal of planning permission on grounds of prematurity will not usually be justified.… 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 consultation stage, with no early prospect of submission for examination, then a refusal on prematurity grounds would seldom be justified because of the delay which this would pose 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 consultation stage, with no early prospect of submission for examination, then a refusal on prematurity grounds would seldom be justified because of the delay which this would pose in determining the future use of the land in question.[19]That policy remains in force; but further guidance on the issue of prematurity is contained within the NPPF, which at paragraph 216 provides:
“From the day of publication, decision-takers may also give weight to relevant policies in emerging plans according to: - the stage of preparation of the emerging plan (the more advanced the preparation, the greater the weight that may be given); - the extent to which there are unresolved objections to relevant policies (the less significant the unresolved objections, the greater the weight that may be given); and - the degree of consistency of the relevant policies in the emerging plan to the policies in this Framework (the closer the policies in the emerging plan to the policies in the Framework, the greater the weight that may be given).”
[20]Finally in relation to policy, I should refer to the recent shift from central government control of planning to more localised control. In addition to the requirement imposed upon each local planning authority by sections 15 and 17 of the 2004 Act to produce local development schemes setting out its spatial planning strategy for its area, under Part 5 of the Local Democracy, Economic and Construction Act 2009, regional strategies were established in relation to “the development and use of land” and housing targets based on such strategies were imposed on local authorities, as it were, from above. That provision reflected earlier legislation to similar effect in which regional spatial strategies were to be formulated.[21]In a statement to Parliament on 6 July 2010, the Coalition Government announced an intention to revoke regional strategies and return housing supply decision to local planning authorities. An attempt to revoke regional strategies outside Parliament without any environmental assessments or consultation, perhaps unsurprisingly, failed (see R (Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government [2010] EWHC 2866 (Admin)). In the wake of that judgment, the Chief Planning Officer wrote to all local planning authorities acknowledging that regional strategies had been re-established as part of the development plans, but reiterating the Government’s intention to abolish them and stating that the Secretary of State expected local authorities to have regard to that intention as a material consideration in planning decisions. In the follow-up case of R (Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government [2011] EWCA Civ 639, the Court of Appeal held that the Government’s intention to abolish regional strategies was capable of being a material consideration in planning decisions, but the weight to be given to it was a matter of planning judgment, taking account of the progress that had been made in implementing the proposed abolition. That chimes with paragraph 216 of NPPF.[22]Section 109(3) of the Localism Act 2011 authorises the Secretary of State to revoke regional strategies, but the regional strategy for the relevant area here (The North West of England Plan: Regional Spatial Strategy to 2021) has not yet been revoked.

The Development Plan and Policy Application by the Inspector

[23]The content of the development plan is defined in section 38 of the 2004 Act to include the regional spatial strategies and “development plan documents” (“DPDs”) for the relevant area. DPDs are required to go through a rigorous process. They must be prepared in accordance with the local development scheme (section 19), and are required to undergo independent examination to determine (amongst other things) whether they satisfy identified statutory provisions and regulations, and whether they are “sound” (section 20(4) and (5)), i.e. are positively prepared, justified, effective and consistent with national policy (see paragraph 182 of the NPPF). The examiner must make a recommendation as to any DPDs he has examined (section 20(7)). Before doing so, he must consider any representations or objections made (regulation 20 and 23 of the Town and County Planning (Local Planning) (England) Regulations 2012).[24]At the time of the Inspector’s decision, the development plan for the relevant area comprised:(i) the North West of England Plan Regional Spatial Strategy to 2021; and(ii) the Congleton Borough Local Plan Review, adopted in 2005.[25]The Regional Spatial Strategy had survived for the reasons and with the consequences I have already indicated. Amongst other things, it:(i) set a housing requirement figure for the Council’s area of 1,150 net additional dwellings to be delivered annually (a figure approved by resolution of the Council in Cabinet on 18 October 2010); and(ii) as stressed by the Council in their submissions to the Inspector (see paragraph 11 and 18 of its closing submissions), policy MR4 of the Regional Spatial Strategy gave “particular prominence” and a “clear specific priority to Crewe as a centre for economic growth and regeneration”, an objective reflected in the Cheshire East Sustainable Communities Strategy.[26]Before the Inspector, it was common ground that the development site was within the open countryside and would locally intrude into the character of the area contrary to policy PS8 of the Saved Local Plan Review, which was (the Inspector considered) itself consistent with the NPPF. As such, the Inspector considered that that consideration carried considerable weight against the proposed development (see paragraph 8 to 9 of the Inspector’s decision).[27]However, the Council agreed that it was unable, by reference to its IPP or otherwise, to demonstrate a five year supply of deliverable housing land. The figures were dealt with by the Inspector in paragraphs 31-3 of his decision.[28]It was uncontentious before the Inspector that, in making any individual planning decision, paragraph 47 of the NPPF required not only a five year supply of housing land, but also an appropriate buffer. It was submitted on behalf of Mr and Mrs Dale before him that the Council had persistently underperformed such that a twenty per cent buffer was appropriate. The Council pressed for a five per cent buffer. On that issue, the Inspector favoured the Council’s submissions; but he found that, on any view, whichever size the buffer might be, with or without it, housing land supply fell below four years, the figures being 3.9 years without a buffer and 3.75 years with the five per cent buffer he considered appropriate.[29]He concluded that a five year supply of deliverable housing sites could not be demonstrated “by a clear margin”, which represented “a serious shortfall in housing provision that carries substantial weight”. Housing on the proposed development site would contribute to meet that shortfall.[30]That gave rise to a policy presumption for granting permission in favour of sustainable development. After fully considering sustainability, the Inspector found that the proposed site “would form a sustainable site for development in respect of policy contained in the NPPF” (paragraph 29). These matters, considered the Inspector, carried substantial weight in the context of the appeal (paragraph 39).[31]In paragraphs 40-9, the Inspector considered the issue of prematurity. He considered the saved Local Plan Review which, in policy H2, contained a breakdown of housing requirements between settlements, noting that Congleton town was to have no more than thirty per cent. However, in line with the NPPF, because the Council could not demonstrate a five year land supply, that policy was deemed out-of-date (paragraph 42). The Council never suggested that the IPP could demonstrate a five year housing land supply, but (they contended) the IPP was in fact assisting in increasing the housing supply; it was going in the right direction, and it contended that it would be premature to make ad hoc decisions immediately.[32]Understandably, the Inspector dealt with the IPP in the part of his decision on prematurity. In paragraph 44, he said:
“The Council has adopted for development control purposes and pending adoption of the core strategy, an interim planning policy for the release of housing land to manage the release of land to maintain a five year housing land supply. This indicates that housing land will be released adjacent to the settlement boundary of Crewe and as part of mixed developments in town centres and regeneration areas. This document, which has been subject to consultation, only carries limited weight. It is not intended that this would prejudice consideration of future alternative options of the future development strategy. The Council has resolved to grant permission, subject to legal agreements, to three sites adjacent to Crewe totalling 1,101 dwellings, and this is not considered to prejudice the upcoming core strategy of site allocations DPD.”
That passage reflects the nature of the IPP as effectively to facilitate development in and around Crewe.[33]The Inspector referred to the national guidance in the Planning GPs, to which I have referred, in the following terms (paragraph 49):
“The planning GPs advise that where a DPD is at the consultation stage with no prospect of early 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. Taking account of government advice and the fact that a draft of the core strategy and site allocations DPD have yet to be produced for public consultation, it is considered that there is little justification for delaying the decision or, as the council Suggests, considering other sites that the council contend offer increased levels of sustainability.”
[34]The Inspector concluded (paragraph 64):
“Whilst it is concluded that the site is within the open countryside and would locally intrude into the character and appearance of this area, this is outweighed by the need to secure a five year supply of deliverable housing land that would also contribute to providing affordable and low-cost housing. The proposal would represent a sustainable development that could achieve a high quality of housing of a suitable mix that would use the land efficiently and effectively. It would not be premature or prejudice the development of other sites and nor would it lead to an unwarranted loss of best and most versatile agricultural land. For these reasons, and taking account of local representations in all other matters, the appeal is allowed.”
[35]I now turn to the two grounds of challenge.

The First Ground of Challenge

[36]Mr Crean QC for the Claimant submitted that the Inspector had failed to understand that, at the heart of the Council’s case before him, was the contention that the IPP could and would bring forward land rapidly in sustainable locations outside the forward planning process, which would quickly address the shortfall apparent from the development plan. In particular, the Inspector did not take into account the three matters which, it had been suggested to him, tended to give the IPP more weight, namely it had been made(i) after consultation,(ii) after sustainability appraisal and habitat regulations assessment, and(iii) after the Council had approved it. Given that the IPP has been the subject of those steps, he submitted that the Inspector could not properly have given it less than “good weight”; whereas he gave the IPP only “limited weight”. At the very least, as the “status, content and relevance” of the IPP were of critical importance at the inquiry, the Inspector was required at least to explain why he preferred the case advanced by Mr and Mrs Dale, to that advanced by the Council; and in particular why the IPP should only have been accorded limited weight. He failed to do so.[37]Eloquently as those submissions were put, I am unable to accept that the ground is even arguable. In coming to that conclusion, I have particularly taken into account the following.[38]First, I do not accept that the IPP was at the heart of the Council’s case before the Inspector. Kevin Waters is Gladman Developments’ Planning and Development Manager, who has produced two statements in support of the Defendants in this claim. His evidence is that the IPP did not feature as a major issue at the inquiry before the Inspector, at all (see paragraph 31 and following of his 15 October 2012 statement; and paragraph 21 and following of his 15 March 2013 statement). Mr Waters is, of course, not disinterested in this claim. However, I have read the Council’s closing submissions at the Inspector’s inquiry; and the IPP certainly does not appear to have been at the forefront of them. Indeed, the only reference is in paragraph 21, and that is simply to recite the oral evidence of Adrian Fisher (the Council’s Strategic Housing and Planning Manager), that the land supply situation appeared to be improving “due in part to the IPP which appears to be delivering results”, and make a passing reference to Mr Fisher’s proof of evidence. In his statement of 19 March 2013, Mr Fisher just exhibits his evidence to the inquiry which confirms that the IPP was approved by the Council, that it was not part of the development plan, and the Council were “careful to ensure that it was not misunderstood as being part of the development plan and thus attracting inappropriate weight”.[39]Second, insofar as the IPP was relied upon by the Council, it was substantially in relation to prematurity. Mr Fisher’s statement referred to the point of substance being that the IPP had “started to pay dividends”, and three applications for planning permission in Crewe had been made a result of it. The evidence and the Claimant’s case before the Inspector did not go further than that. As I have indicated, it was not suggested that the IPP showed a five year housing supply: it clearly did not. The point was simply that the Council had in place a mechanism for boosting supply to an extent, and that was to an extent working; and in the future it was hoped that it would continue to work, and hence the urgency for granting planning permission in other locations was removed (see paragraph 3 of his statement). In other words, it was – in substance – a prematurity point. As I have described, the Inspector dealt with the issue of prematurity, perfectly properly.[40]Third, reading his decision as a whole, the Inspector was clearly well aware that housing land supply was a main issue for the appeal – he expressly identified housing land supply as a main issue, in paragraph 5(e) of his decision – and he equally clearly understood that the Council were submitting that he could be assured that even in the absence of a five year supply, the IPP would go to remedy that deficiency to an extent. I am in no doubt that the Inspector well understood that the Council relied upon the IPP to overcome the considerable hurdle it faced, because it fell far short of being able to demonstrate that there was a five year supply of housing land and the presumption to which that gave rise.[41]He dealt with the factors that, in his view, went to the weight of the IPP in respect of the housing supply issue. He pointed out, for example, that the IPP was a temporary measure, not founded upon a policy in a development plan, but setting out interim means of securing the delivery of housing in advance of having a properly formulated and adopted local plan. This is an important point. The IPP was an informal policy document adopted by the Council as a pro tem measure, after public consultation and the other assessments to which I have referred, but without the full procedural rigour required for a DPP by the statutory scheme to which I have referred. It was on that basis that it was submitted by Mr Tucker QC on behalf of Mr and Mrs Dale to the Inspector, that the IPP should be given only limited weight (see paragraph 2.5 of his closing submissions to the inquiry). The policy had not been considered by an independent examiner at all; and certainly such an examiner had not taken into account any objections to it. In uncontested evidence, Mr Waters indicates that there were “extensive objections” to the IPP (his paragraphs 27-8 of his 15 March 2013 statement). The IPP was not an emerging local strategy: it was a temporary strategy put in place pending a local strategy that had satisfied the relevant statutory criteria.[42]As I have indicated, the evidence suggested that in practice the IPP had had some impact on the land supply, although of course the impact that it had had in the past was taken into account in the figures relied upon by the Inspector to which I have referred, and in any event that impact was not sufficient to suggest anything like a five year supply. The Inspector was reminded of all of that in the Council’s written closing submissions.[43]The Inspector clearly had these matters in mind: but he was entitled to give the IPP the weight he considered appropriate. In terms of the proper weight to be given to the IPP, he simply preferred the submissions made on behalf of Mr & Mrs Dale – as he was entitled to do.[44]Fourth, Mr Crean submitted that the Inspector failed to take into account the fact that the IPP had been published only after(i) consultation,(ii) sustainability appraisal and Habitat Regulations assessment, and(iii) the Council had approved it. However, in paragraph 44 of his decision, the Inspector specifically referred to the Council having adopted the IPP and that it had been the subject of public consultation – he clearly had those in mind – the only factor which he did not expressly mention being the Habitats Regulation assessment. There is no evidence that this was material.[45]Fifth, the Council itself appears to have accepted, or come very close to accepting, that the IPP warrants only limited weight. In Fox Strategic Land and Property Ltd v Secretary of State for Communities and Local Government [2012] EWHC 444 (Admin), His Honour Judge Gilbart QC sitting as a judge of this court said of the IPP, which was in play in that claim too, that it could properly be given “very little weight”. No one in that case appears to have suggested otherwise. In other applications to the Council for planning permission, inspectors and the Secretary of State have indicated in decision letters that the IPP could be given “limited weight” or “only limited weight” or indeed “very little weight” (see paragraph 32 of the 15 March 2013 statement of Mr Waters). Those do not appear to have been challenged by the Council. In one instance, the Council officer’s report to the strategic board of the Council itself vouched the view that the IPP “has limited weight in preventing development elsewhere, i.e. other than Crewe”. Mr Waters says in paragraph 35 of the same statement:
“In none of these decisions has the IPP been attributed ‘good weight’ and in many cases the council have agreed that it should be given limited weight.”
Mr Fisher says (in his 19 March 2013 statement at paragraph 5) that, after the decision of the Inspector in this case, this was self-perpetuating; but this does not appear to be an entire answer, because the documents before the Inspector referred to some of these instances which were earlier. Mr Fisher says that he maintains the proposition that the IPP should, i.e. must, be given “a good degree of weight”, although he accepts not the weight of a development plan or a supplementary planning document. The IPP should not, he says, have been treated “dismissively”. However, (i) at the very least, these other cases suggest that the IPP may rationally be given limited weight in the determination of a planning application in which it is a material consideration; and (ii) by giving it limited weight the Inspector was not treating the IPP dismissively or lightly; he was giving the weight he considered appropriate.[46]Sixth and finally, with regard to reasons, the decision was written for the informed reader aware of the issues after a five day inquiry hearing, including the IPP issue that had been raised. There was, in my view, no doubt as to what that issue was, nor, in my view, is there any doubt as to how the Inspector resolved it effectively in favour of the submissions that had been made on behalf of Mr and Mrs Dale.[47]In those circumstances, the Inspector was, in my judgment, entitled to the view that only limited weight should be given to the IPP. Indeed, although of course entirely a matter for him, in all of the circumstances that view is not at all surprising. It was certainly not irrational, given that weight is quintessentially a matter for the planning decision-maker; and, for the reasons I have given, the Inspector’s reasons for adopting that weight in respect of the IPP were abundantly clear.[48]For all of those reasons, I do not consider this first ground to be arguable.

The Second Ground of Challenge

[49]The second ground is entirely new: it was only put forward last Tuesday. That, of course, is not directly relevant to its merits, although it is curious that no one considered it had sufficient merit to be worth raising before. There was no apparent stinting of effort that went into the initial grounds.[50]In any event, Mr Crean submitted that the Inspector erred in paragraph 35 of the decision by referring to the Council’s shortfall in housing land supply in terms of five years and the buffer. He submitted that, although paragraph 47 of the NPPF referred to five years plus the buffer in terms of development plan making, paragraph 49 (which concerned the development control function of individual decisions) referred to and meant five years without the buffer. In the circumstances, although on the figures the presumption of grant in paragraph 14 was on any view triggered, when the Inspector came to balancing the factors to see whether the presumption was rebutted, he used the wrong figure to the detriment of the Council, which contended that the presumption was rebutted.[51]However, I am equally unpersuaded by this late runner. I appreciate that the construction of the NPPF is an objective matter of law, but as paragraph 19 of Lord Reed’s judgment in the Dundee case emphasises, that does not mean that the policy guidance has to be construed like a statute. The NPPF was deliberately “written simply and clearly” (a quote from the last paragraph of the Ministerial Foreword).[52]Whilst I accept that the first bullet point of paragraph 47 relates to a planning authority’s plan-making function – the opening words confirm that – the rest of the paragraph is, in my view, not so restricted. The NPPF generally applies to all planning decisions, whatever the function is involved (see the Introduction, paragraph 2); and, as Mr Maurici submitted, where in the NPPF a particular provision is limited to a specific function, that is made clear. Paragraph 14 is itself an example; but Mr Maurici also referred to paragraphs 23, 98 and 100 as others.[53]In its proper context, it is clear that the second bullet point in paragraph 47 in effect defines “five years supply” for the purposes of the NPPF as “five years’ worth of housing against housing requirements with an additional buffer of five per cent … to ensure choice and competition in the market for land”. That is how it must be used in the penultimate bullet point in paragraph 47, and also in paragraph 48 which concerns windfall land; and also, in my view unarguably, in paragraph 49. For it to be otherwise would not be rational. The relevant policies for the supply of housing in paragraph 49 must mean the policies in paragraph 47, i.e. as those deriving from the development plan. The provision for an obligation in paragraph 47 to update annually the supply of specific deliverable sites – which cannot mean an annual development plan as they take considerably longer than a year to complete – again, supports that conclusion.[54]This ground, in my view, is consequently unarguable in terms of construction. But, in any event, it appears to me to be academic in terms of this claim. First, it is common ground that the paragraph 14 presumption in favour of grant applied, in that the development plan was out-of-date and consequently permission had to be granted as a matter of policy unless “any adverse impacts of granting permission would significantly and demonstrably outweigh the benefits when assessed against the policies in the NPPF as a whole.” It is difficult to see, given that formula, that an additional shortfall in housing supply can be given any weight in this balancing exercise. Second, the Inspector found that 3.74% was a serious shortfall. In my judgment, although of course it is not for me to make any merit judgment, it is simply inconceivable that his assessment in this case would have been any different at all had that figure been at 3.95%.[55]For all of those reasons, I consider that this second ground also is bad.

Appropriate relief

[56]Given those conclusions on the two grounds upon which the Claimant wishes now to rely, what is the appropriate relief on the various applications before me?[57]In relation to the application to amend the grounds of claim, as a matter of principle such amendments should only be allowed if the resulting claim is arguable, a principle recently confirmed in the context of section 288 applications in San Vicente v Secretary of State for Communities and Local Government [2012] EWHC 3585 (Admin). As I have found the reformulated claims to be unarguable, I refuse the application to amend.[58]In respect of the claim as it was originally pleaded, most has now been abandoned. Of the balance, I have found it to be unarguable. In the circumstances, the appropriate course is the strike out the claim on the application of Mr and Mrs Dale dated 15 October 2012.[59]Finally, I shall formally dismiss the Claimants bold but late and frankly optimistic cross-application dated 12 March 2013 for summary judgment.

After further submission on costs

[60]Having dealt with substantive issues, the only issue now is the question of costs. In the normal course of things, although costs are in the discretion of the court, an unsuccessful party pays a successful party’s costs, unless there is good reason for making another order.[61]The Claimant accepts that it must pay the Secretary of State’s costs, in the agreed sum of £19,158.91. I make that order.[62]As Bolton MDC v Secretary of State for the Environment [1995] 1 WLR 1176 teaches us that, in a section 288 claim where the Secretary of State and developers are separately represented, there is a good reason for not allowing them two sets of costs, unless those parties have different issues with the Claimant, or alternatively have different interests.[63]As I indicated in the substantive judgment, the course of this application was an unusual one, with Mr and Mrs Dale as the site owners taking an early application to strike out this claim which they consider was wholly without merit. Following the Tewkesbury case, that claim was abandoned by the Claimant, to be replaced by two specific grounds, which I have held today were unarguable. Furthermore, up to last Tuesday, when the Claimant’s claim changed in colour and substance, the lead defendant was Mrs Dale, with the Secretary of State taking a back seat. She made the strike out application, as she had a particular sense of urgency, which the Secretary of State perhaps did not entirely share. Her husband died in October, and she is ninety-eight years old. I make those comments in the full knowledge that behind them (or, at least, by the side of them) there is a significant developer with an option agreement for the land.[64]However, in determining costs I do have to take into account the procedural conduct of the parties; and also the fact that there is not entire duplication between the Defendants, because Mrs Dale understandably took the lead until last Tuesday and the Secretary of State since then, when the direction was given for a full hearing, in rolled-up form. I accept that there was some overlap, because the Secretary of State incurred some advice costs before last Tuesday, although those must have been relatively modest.[65]In all of those circumstances, in addition to making the order in respect of the Secretary of State’s costs which has been agreed, I shall make an order that the Claimant pays 75% of the Second and the Third Claimants’ costs, to be the subject of a detailed assessment if not agreed, and limited in time to 12 March 2013. In all of the unusual circumstances of this case, it seems to me that those costs orders do justice between the parties.

Cited in 4 later judgments