Wiltshire Council v Secretary of State for Communities and Local Government & Ors [2015] EWHC 1261 (Admin)

Case No CO/416/2015[2015] EWHC 1261 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT BRISTOL
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/04/2015
Before
THE HONOURABLE MRS JUSTICE PATTERSON DBE
Between
WILTSHIRE COUNCILClaimant
Mr Hugh Richards (instructed by Wiltshire County Council) for ClaimantMr Graham Walters (instructed by Government Legal Department) for First DefendantCO/416/2015 only:Mr Richard Kimblin (instructed by Osborne Clark) for Second to Fourth DefendantsCO/627/2015 only:No appearance or representation by the Second DefendantHearing Hearing date: 27 April 2015
Judgment

Introduction

[1]On 24 December 2014 Mr Gareth D Jones, an inspector appointed by the Secretary of State for Communities and Local Government, allowed an appeal by the second, third and fourth defendants against a decision of the claimant and granted planning permission for the erection of fifteen dwellings and associated works to the south of the village of Hilperton – Appeal A.[2]On 5 January 2015 Joanne Jones, an inspector appointed by the Secretary of State for Communities and Local Government, allowed an appeal by Mr Cooper against a decision of the claimant and granted planning permission to use an annex as independent living accommodation at The Chase, Church Street, Hilperton without complying with conditions attached to planning permission W/12/01877/FUL which restricted the use of the annex to purposes ancillary to the residential use of The Chase – Appeal B.[3]In both appeals the claimant challenges the decision letters on the basis that the inspectors omitted to consider a material consideration as part of their decision making process. What is alleged to be a material consideration by the claimant is the inspector’s report into the emerging Wiltshire Core Strategy (EWCS) which was received by the claimant during the period of the inspectors’ decision making.[4]Originally the claimant pursued a second ground of inadequate reasons on the part of both inspectors. That ground has not been proceeded with. I say nothing further about it.[5]The second to fourth defendants are developers in receipt of planning permission under Appeal A.[6]Mr Cooper, the appellant in Appeal B, did not appear and was not represented at the hearing before me although his wife was present at the proceedings. Factual Background Appeal A

Factual Background

[7]The appeal proceeded by way of public inquiry held on 14 and 15 October 2014. The decision letter notes that: i) Shortly before the inquiry the claimant conceded that it could not demonstrate a five year supply of housing land [paragraph 2]; ii) That the main issue was whether the proposal would be a sustainable form of housing development having particular regard to existing housing land supply policies, the need for housing sites in Wiltshire, the accessibility of the location, the effect on the character and appearance of the area and economic considerations [paragraph 4]; iii) In respect of housing delivery the National Planning Policy Framework (NPPF) required the Council to meet full objectively assessed needs for market and affordable housing in the housing market area. Applications for housing should be considered in the context of the presumption in favour of sustainable development and relevant policies for the supply of housing should be considered to be out-of-date if the Local Planning Authority could not demonstrate a five year supply of deliverable housing sites [paragraph 7]; iv) The EWCS was at an advanced stage of preparation with the examining inspector having held a final hearing session into two outstanding issues before reaching his conclusions on whether the EWCS was sound [paragraph 11]; v) Paragraphs 15 to 18 of the decision letter dealt with ‘Housing Need’. They said :
“15. The evidence indicates that the full objective assessment of housing need (OAN) for the eWCS plan area and period is some 44,000 homes. In this respect my attention has been drawn to a recent appeal decision at land south of Abberd Lane, Calne, Wiltshire (Abberd Lane appeal). Having regard to that decision and the wider evidence before me, I have no good reason to disagree with the Abberd Lane appeal Inspector’s assessment that the best estimate of OAN at present is 44,000. 16. While the eWCS is at an advanced stage, it has yet to be adopted. We are now some 3 years beyond the period for which the District Plan sought to meet the development needs of the Plan area. The Council accepts that it cannot demonstrate a Framework compliant supply of housing land. Through the eWCS it is planning to deliver at least 42,000 homes, some 2,000 below the full OAN. 17. The eWCS examining Inspector’s 10th Procedural Letter states that the evidence indicates a considerable need for various forms of affordable housing throughout Wiltshire. The evidence also indicates that there are issues associated with the delivery of affordable housing, including viability. 18. Therefore, although it is for only 15 dwellings, the proposed development would make an important contribution to identified housing need. For the reasons outlined, I find that the need for both market and affordable housing carries very significant weight in favour of the proposal.” vi) The inspector concluded that in terms of the economic and social dimensions of sustainable development the appeal proposal would be deliverable and increase the supply and choice of housing in an area where there was not a Framework compliant supply of housing land. vii) In terms of the planning balance and the environmental dimension the development of the site would reduce the apparent separateness of the village core of Hilperton to the detriment of its existing character. That harm carried significant weight but was outweighed by matters in favour of the development which included the supply and choice of housing in the area [paragraph 46]; viii) Sometime before 12 November 2014 the claimant received a draft of the final report of the inspector who was examining its core strategy for factual consideration. That exercise was carried out and factual corrections sent to the Planning Inspectorate (PINS) on 12 November; ix) On 1 December 2014 the claimant received the final report of the examining inspector into the Wiltshire Core Strategy. The covering letter from the Plan team included the following paragraph: “The Council should consider whether adoption could have any effect on appeals currently being considered by the Planning Inspectorate. As you know, appeals must be determined on the basis of the development plan as it exists at the time of the Inspector’s (or the Secretary of State’s) decision, not as it was at the time of the Council’s decision. If adoption changes the policy position, the relevant Inspector(s) will need to take that into account. In addition, please ensure that your new policy position is clearly explained when submitting your Questionnaire in relation to future appeals received after adoption.”
[8]Mr Wilmott, the Area Development Manager with the claimant, having read what he describes as critical parts of the EWCS inspector’s report submitted it to the case officer for Appeal A at PINS under the cover of an email at 09.28 on 3 December 2014 requesting that publication of the report be brought to the attention of the inspector considering the appeal. The email said as follows:
“I am aware that the Public Inquiry concerning this appeal has now closed. However, the Council has now received and published the Final Report from the Planning Inspector into the Wiltshire Core Strategy, a copy of which is attached, together with his letter. The letter advises consideration to be given to the effect on appeals currently being considered by the Inspectorate, of which this is one. I can advise that the Core Strategy is scheduled to be formally considered for adoption by the Council at a Special Full meeting of the Council on January 20th 2015. The Inspector has found the Wiltshire Core Strategy to be sound, and that an adequate five year supply of housing land has been demonstrated. He has considered that the minimum housing figure within the Core Strategy should reasonably equate to at least 42,000 homes over the plan period, and has endorsed the Council’s proposed settlement hierarchy set out in policy CP1 and the Council’s housing delivery strategy set out in policy CP2. I would be grateful if you could bring the publication of this report to the attention of the Planning Inspector considering this appeal.”
[9]At 16.10 on 3 December the appeal inspector Gareth Jones emailed his decision letter on the appeal into the PINS Dispatch Team to enable PINS to go through its processes before issuing the decision letter.[10]On 8 December 2014 Mr Wilmott received a decision letter on another appeal at Aldbourne Road which made no reference to the final report on the emerging Core Strategy. On 9 December Mr Wilmott emailed PINS again expressing his concerns that “the Inspector has clearly not seen and not made any reference to the fact that the Inspector’s report into the Wiltshire Core Strategy was issued on December 1st, might have made her write certain aspects of the report differently”. He made the point that he had emailed the report in on 3 December but thought that although it looked unfortunate no great harm was done. The appeal was dismissed. He continued “however, on the same day I sent a similar email with the Inspector’s Report to Alison Bell, who is the case officer for a public inquiry we recently had at Devizes Road, Hilperton (Planning Appeal APP/Y3940/A/14/2221954) Land South of Devizes Road, Hilperton). The decision letter on this one has yet to be issued, but I think it would be unfortunate if in this one the Inspector similarly made no reference to the Core Strategy Report and the Inspector’s findings – wouldn’t look very joined up and might leave it open to challenge.”[11]On 24 December 2014 the decision letter in Appeal A was issued. It contains no reference to the EWCS final report.[12]The witness statement of the inspector, Gareth Jones, confirms that at the time of writing the decision letter he had no knowledge of the examining inspector’s report. He has reviewed his emails and to the best of his knowledge and recollection the emails from the claimant and attached report were not sent to him.[13]There is no evidence from Alison Bell or any officer at PINS on what they did, if anything, upon receipt of the emails from Mr Wilmott.

Appeal B

[14]The disputed conditions 2 and 7 prevented the use of the annex as independent living accommodation. They were imposed “to define the terms of the permission” and because the creation of an independent dwelling in such close proximity to The Chase would have an adverse impact on the amenity of The Chase and could have additional traffic implications.”[15]The appeal was conducted by written representations. The decision letter found that there were three main issues. They were:
“3. The main issues in this case concerns the effect of removing conditions 2 and 7, to facilitate the use of the annex as independent living accommodation, on: • whether it would represent a sustainable form of development; • Highway safety; and • Living conditions of existing occupiers of The Chase, with particular reference to nuisance from passing vehicles.” • whether it would represent a sustainable form of development; • Highway safety; and • Living conditions of existing occupiers of The Chase, with particular reference to nuisance from passing vehicles.”
[16]As part of the background the appellant, Mr Cooper, contended that the claimant was unable to demonstrate a five year housing land supply. The decision letter recorded, at paragraph 5, that the claimant had not obtained agreement of the development plan inspector that it met the five year housing requirement. Her letter contained a footnote to a letter from the examining inspector dated 2 December 2013. Accordingly, the appeal inspector proceeded on the basis that the proposal was to be assessed against the relevant policies in the NPPF in accordance with guidance given in paragraph 49 of the NPPF [paragraph 5].[17]On sustainable development the inspector found that social benefit would arise from the provision of a new house in an area of shortage. In the economic dimension the benefits of one house might be small but were not insignificant [paragraph 8]. She concluded that the removal of the disputed conditions and the use of the appeal site as an independent unit of accommodation should amount to a sustainable form of housing development when assessed against the Framework as a whole [paragraph 13].[18]On highway safety and living conditions there was no unacceptable harm and no basis to refuse the application [paragraphs 21 and 23].[19]Finally, addressing the claimant’s concern about precedent she found that based upon the site’s particular merits and characteristics there was no precedent that was binding on the council [ paragraph 24].[20]James Taylor was the Senior Planning Officer responsible for dealing with Appeal B. Upon receipt of the final report on the EWCS and, having spoken to Mr Wilmott, he emailed the case officer at PINS with conduct of the appeal, Jennifer Saunders, on 3 December 2014 in similar terms to the email of Mr Wilmott of the same date. On 15 December 2014 Jennifer Saunders emailed Joanne Jones in the following terms, “Joanne, Please see below for possible consideration”. The reference to below was the email from Mr Taylor dated 3 December 2014 which was forwarded to Joanne Jones.[21]On 5 January 2015 the decision letter on Appeal B was issued. There is no reference within it to the inspector’s report on the EWCS.[22]The witness statement of Joanne Jones confirms that she sent her decision letter for dispatch to PINS on 9 December 2014. On 15 December 2014 she received an email from the PINS case officer which attached a copy of the Inspector’s final report into the EWCS. She says nothing about what she did, if anything, upon its receipt.[23]A witness statement from Stephen Cooper, the appellant, refers to evidence submitted in the written representations appeal to make it clear that the five year housing land supply, whilst referred to by the parties, was not a main issue in the case and was not identified as such by the inspector.[24]The appellant’s representations dealt with the site characteristics, transportation issues and sustainability issues. The final representations submitted by Impact Planning dated 21 November 2014 recorded that an additional dwelling would assist in delivering government policy albeit it was a modest contribution. The letter dealt substantively with issues of precedent, sustainability and traffic generation.

Legal Framework

[25]There is no substantial dispute on the legal principles between the parties.[26]Under section 288Town and Country Planning Act 1990 (TCPA) a person aggrieved may apply to quash a decision on the grounds that: a) it is not within the powers of the Act; or b) any of the relevant requirements have not been complied with and in consequence, the interests of the applicant have been substantially prejudiced.[27]The general principles of judicial review are applicable to a challenge under section 288 TCPA. The claimant must establish that the Secretary of State misdirected himself in law or acted irrationally or failed to have regard to material considerations or establish that there was some procedural impropriety.[28]What is a material consideration is a matter of law. The approach to the issue of materiality was summarised by Glidewell LJ in Bolton Metropolitan Borough Council v Secretary of State for the Environment [1990] 61 P&CR 343 at [352/3]:
“1. The expressions used in the authorities that the decision maker has failed to take into account a matter which is relevant, which is the formulation for instance in Forbes J’s judgment in Seddon Properties, or that he has failed to take into consideration matters which he ought to take into account, which was the way that Lord Greene put it in Wednesbury and Lord Denning in Ashbridge Investments, have the same meaning. 2. The decision maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account. Such a matter is relevant to his decision making process. By the verb ‘might’, I mean where there is a real possibility that he would reach a different conclusion if he did take that consideration into account. 3. If a matter is trivial or of small importance in relation to the particular decision, then it follows that if it were taken into account there would be a real possibility that it would make no difference to the decision and thus it is not a matter which the decision maker ought to take into account. 4. As Hodgson J said, there is clearly a distinction between matters which a decision maker is obliged to statute to take into account and those where the obligation to take into account is to be implied from the nature of the decision and of the matter in question. I refer back to the Creed NZ case. 5. If the validity of the decision is challenged on the ground that the decision maker failed to take into account a matter in the second category, it is for the judge to decide whether it was a matter which the decision maker should have taken into account. 6. If the judge concludes that the matter was ‘fundamental to the decision’, or that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is thus enabled to hold that the decision was not validly made. But if the judge is uncertain whether the matter would have had this effect or was of such importance in the decision-making process, then he does not have before him the material necessary for him to conclude that the decision was invalid. 7. (Though it does not arise in the circumstances of this case). Even if the judge had concluded that he could hold that the decision is invalid, in exceptional circumstances he is entitled nevertheless, in the exercise of his discretion, not to grant any relief.”
[29]In R (Kides) v South Cambridgeshire District Council[2002] EWCA Civ 1370 Jonathan Parker LJ said at [121]:
“In my judgment a consideration is ‘material’, in this context, if it is relevant to the question whether the application should be granted or refused; that is to say if it is a factor which, when placed in the decision-maker’s scales, would tip the balance to some extent, one way or the other. In other words, it must be a factor which has some weight in the decision-making process, although plainly it may not be determinative. The test must, of course, be an objective one in the sense that the choice of material considerations must be a rational one, and the considerations chosen must be rationally related to land use issues.”
[30]In R (Dry) v West Oxfordshire District Council and Taylor Wimpey[2010] EWCA Civ 1143 Carnwath LJ (as he then was) said, of the paragraph set out above at [16]:
“Without seeking to detract from the authority of the guidance in Kides, I would emphasise that it is only guidance as to what is advisable, "erring on the side of caution". Furthermore, in that case there had been a gap of five years between the resolution and the issue of the permission. The guidance must be applied with common sense, and with regard to the facts of the particular case.”
[31]The duty to have regard to material considerations was considered further by Lewis J in Cotswold District Council v Secretary of State for Communities and Local Government[2013] EWHC 3719 (Admin) from [55]: “55. As a matter of public law, a public body must have regard to material considerations. That duty arises, broadly, in two situations. First, there are those considerations which are so obviously material to a decision that the decision-maker must take them into account (whether or not any particular person draws them to the decision-maker’s attention) in reaching a decision. These may be matters that statute expressly or impliedly requires a decision maker to consider. They also include, as Cooke J expressed it in CREEDNZ Inc v Governor General [1981] NZLR 172 at page 183: ‘matters so obviously material to a decision on a particular project that any thing short of direct consideration of them by the ministers … would not be in accordance with the Act.’56. The question of whether a consideration is a material consideration is a matter of law for the court to determine. The question of the weight, if any, to be attached to a material consideration is a matter for the decision-maker: see Tesco Stores Ltd v Secretary of State for the Environment[1995] 1 WLR 759 at page 780E-H.57. Secondly, there are considerations which may be potentially relevant to a decision and, if they are drawn to the attention of the decision-maker, the decision-maker will have to consider those matters and decide what weight, if any, to give to those considerations.58. The general position is reflected, broadly, in the provisions of section 70 of the 1990 Act. In relation to the first group of considerations, some considerations are relevant considerations which must be taken into account because statute expressly provides for that. In the planning context, an example is the development plan as section 70(2)(a) of the 1990 Act expressly provides that the planning authority shall have regard to that (and indeed, determinations must be made in accordance with the development plan unless material considerations indicate otherwise: section 38(6) of the 2004 Act). Furthermore, where considerations are so obviously relevant to planning decisions in England then a planning authority must have regard to them, whether specifically referred to or not. An example is a relevant provision of the Framework itself. That sets out the government’s planning policies for England and is a material consideration.59. In relation to the second group of considerations, a number of other matters are potentially material to a planning decision. If they are drawn to the attention of the decision-maker, and if, as a matter of law, they are relevant considerations to the planning decision, the decision-maker will have to have regard to them (as a matter of general public law, as reflected in the specific obligation imposed by section 70(2)(c) of the 1990 Act). The weight, if any, to be given to the consideration will be a matter for the decision-maker. If such considerations are not drawn to the decision-maker’s attention, however, he will not have acted unlawfully if he does not have regard to them.” ‘matters so obviously material to a decision on a particular project that any thing short of direct consideration of them by the ministers … would not be in accordance with the Act.’

Claimant’s Submissions

[32]The claimant submits that in relation to each appeal the final report of the inspector on the EWCS was potentially a material consideration, in other words, his report was within the second category referred above by Glidewell LJ and Lewis J. The claimant brought the report to the attention of PINS and in Appeal A it appears PINS did nothing. In Appeal B PINS forwarded the report and the claimant’s email of 3 December 2014 to the inspector on 15 December 2014 after she had emailed PINS with her decision letter but before its release. The inspector then did nothing with it.[33]The claimant refers to and relies upon the Planning Inspectorate Procedural Guide - Planning Appeals - England published on 1 April 2014 at paragraphs1.7.1 and1.7.2 which say:
“1.7.1. The local planning authority must alert us if it becomes aware at any stage before the appeal decision is issued of any material change in circumstances which have occurred since it determined the application (eg a newly adopted or emerging policy) that is directly relevant to the appeal. It should indicate the anticipated date of adoption of any emerging policy. The appellant must also do this. 1.7.2. Where the change in circumstances is likely to affect the consideration of the appeal we will ensure that all parties have an appropriate opportunity to comment on the new material. For further information please see Annexe B.”
[34]In Appeal A the claimant submits: i) The “main issue” was defined as whether the proposal would be a sustainable form of housing development having particular regard to existing housing land supply policies, the need for housing sites in Wiltshire, the accessibility of the location, the effect on the character and appearance of the area, and economic considerations [paragraph 4]; ii) The development was judged to be contrary to the development plan [paragraph 10]; iii) The EWCS was at an advanced stage of preparation with the examining inspector having held a final hearing session into two outstanding issues before concluding on its content with regard to the tests for soundness [paragraph 11]; iv) Overall the inspector found that the development of the site would inevitably change its character and reduce the apparent separateness of the village core to the detriment of its distinct character. Consequently, the proposed development would conflict with policies C1, H19 and C31a of the District Plan. Accordingly, those matters weighed significantly against the proposal [paragraph 38]; v) That harm combined with the policy conflict was judged to be outweighed by matters weighing in favour of the proposed development [paragraph 46]; vi) Those matters included the delivery of housing in circumstances where the claimant was proposing to bring forward 42,000 new dwellings in the EWCS in circumstances where the full objectively assessed need for housing was 44,000 but before such a proposal had been found to be “sound” during the independent examination of the EWCS [paragraph 11]; vii) That 42,000 was sound for a housing requirement figure was the conclusion of the inspector carrying out the independent examination into the EWCS which the claimant sought to draw the appeal inspector’s attention to [see email of 3 December 2014]; viii) The final report of the EWCS inspector represented a further stage in the progress of the EWCS. The next stage was adoption. The publication of the report resolved any objections to the 42,000 figure proposed by the claimant as the basis for its housing requirement. The EWCS inspector found: a) that objectively assessed need was 44,000 [paragraph 72]; however, b) a housing requirement of at least 42,000 in the EWCS was sound given that the claimant proposed to produce a new strategic housing market assessment in 2016 and early review of the Core Strategy [paragraph 87]; c) that the claimant could demonstrate a five year supply of housing against the revised requirement [paragraph 92].[35]As a consequence the EWCS report was clearly a material consideration that the appeal inspector needed to deal with. Even if the claimant remained bound by its concession made shortly before the inquiry that there was a shortfall in housing land there was a change in the extent of that shortfall which was also material.[36]On Appeal B: i) The main issue was whether the independent use of the annex would be a sustainable form of development; ii) Relevant to that issue were the social benefits that would arise in an area of housing shortage; iii) The appellant in written representations contended that the failure of the Council to be able to demonstrate a five year supply of housing was evidence of housing shortage. The appeal inspector found that the conclusions of the EWCS inspector in 2013 were relevant to that issue. It would follow that the 2014 report was equally relevant; iv) The final report of the EWCS found that the Council could demonstrate its five year housing supply against a requirement of 42,000.[37]In both appeals the final report on the EWCS was sent to the relevant case officer in each appeal at PINS by separate emails on 3 December 2014. In Appeal A it was sent by Mr Wilmott and in Appeal B it was sent by Mr Taylor. In Appeal A it was not forwarded to the relevant appeal inspector before he sent in his decision on 3 December 2014. His witness statement confirms that at no time was it forwarded to him. In Appeal B it was sent to the appeal inspector but after the inspector had emailed in her decision letter to the dispatch department of PINS. There is no evidence of the inspector taking any action on its receipt.[38]Matters which arise after the final inter partes steps but before a decision is issued are capable of being material to the decision as recognised in Wainhomes (South West) Holdings Ltd v Secretary of State for Communities and Local Government[2013] EWHC 597 (Admin) at [10] and [11].[39]In Appeal B although Mr Cooper’s witness statement avers that the five year housing supply was not a main issue it was plainly a material consideration and material to the inspector’s decision.

Defendants’ Submissions

[40]The first defendant submits that there is no statutory requirement to consider new matters and the test is whether there is a real possibility that consideration of the matter would have made a difference: see Bolton. If there is uncertainty the decision should not be quashed. It is submitted that the claimant has failed to show how, in each case, the final report would have made a material difference to each decision letter.[41]The claim is not based on the adoption of the Wiltshire Core Strategy, rather it relies upon the content of the inspector’s report into the EWCS and the fact of a finding by that inspector that the claimant in its approach to the Core Strategy met the soundness test and had a five year supply of housing land on a revised requirement figure. In fact, both the appeal inspectors and the EWCS inspector adopted parallel reasoning. In Appeal A the EWCS was noted to be at an advanced stage. Core Policy 1 set out a development strategy for Wiltshire with a four tier hierarchy of settlements. Hilperton was designated a large village. Core Policy 2 was to make provision for development to meet the housing requirement relying on a Housing Sites Allocation Development Plan Document (HSADPD). No formal consultation had yet taken place on that document. In his decision the appeal inspector said at [42] that until the EWCS was adopted, given the very early stage of the HSADPD, only limited weight could be given to Core Policies 1 and 2. In Appeal B there was no similarly detailed consideration.[42]The fact that the emerging Core Strategy was increasingly advanced in its statutory process towards adoption did not necessarily mean that the document became material. What was material was to see what the main issues were in each case and how the evidence was assessed by each inspector and how the EWCS would have made a difference.[43]In Appeal A the inspector found that there was a considerable need for housing including affordable housing and that the need for both market and affordable housing carried very significant weight in favour of the proposal [18].[44]The appeal inspector referred to the applicable policies in the EWCS – Core Policy 1 and Core Policy 2. Their relevance was that the housing provision was to be based around defined settlement boundaries in the District Plan which were to be reviewed as part of the HSADPD but, as set out, because that was at a very early stage he gave limited weight to Core Policy 1 and Core Policy 2.[45]The inspector noted that the core policies were not cited in any of the reasons for refusal but were relevant to the determination of the appeal as they set out the overall development strategy for Wiltshire and how future housing allocations were to be made [paragraph 41].[46]In the final report on the EWCS the inspector accepted that the claimant could demonstrate a five year supply of deliverable housing sites against a requirement of 42,000 but that finding was on balance. Windfalls were not an inconsiderable component in the five year housing supply and there was a buffer of 5%. The inspector found that the Core Strategy was sound on the basis of a need for an early review of the Core Strategy and the carrying out of other studies. As such, the claimant would have to contend that the appeal inspector should have attached greater weight to policies CP1 and CP2 such that his decision may have been different. Those are matters exclusively of weight for the decision maker.[47]In fact, the appeal inspector considered the housing need figures in the region of 42,000 to 44,000 and found that the emerging plan would add significant provision to the housing situation. It cannot be shown that receipt of the final report would have made any difference to the inspector’s decision. The EWCS report was not, therefore, a material consideration.[48]The second, third and fourth defendants are concerned only with Appeal A. They do not accept that the EWCS final report was a material consideration. They submit that it comes within the second category referred to by Lewis J in Cotswold District Council (supra) as potentially a material consideration.[49]The second to fourth defendants observe that the inquiry proceeded on the basis of the express concession made by the claimant shortly before the inquiry that there was no five year housing supply. As a result the final report into the EWCS could not be a material consideration as it bore upon a matter that was not in issue between the parties. The figures before the EWCS inspector would be to a different base date to that used at the appeal. The figures before each inspector would thus be materially different.[50]The email sent on 3 December 2014 by the claimant did not resile from the concession made for the planning inquiry. Nor did it contend that the EWCS inspector’s report represented a material change. The claimant had not sought to have the inquiry re-opened nor informed the parties or PINS that the EWCS’s report was on its way. There was nothing in the contemporaneous material that set out what the materiality of the report was meant to be.[51]Further, when the report from the EWCS inspector was properly analysed his findings on the housing requirement were necessarily a holistic assessment and a matter of judgement on the material before him.[52]The appeal inspector and the EWCS inspector were aligned in their approach to the EWCS. The appeal inspector concluded that the appeal site would make an important contribution to housing need. There was no evidence before the court that showed that the difference of 2,000 dwellings in the housing requirement meant that the claimant was able to demonstrate a five year housing supply.[53]The focus at a public inquiry was on the evidence that the parties chose to present to the inspector. The appeal inspector was considering a five year housing position before him on an agreed basis against a requirement of 44,000 which was different to arguments before the EWCS and without any evidence from the claimant to demonstrate how the EWCS inspector’s findings were material. Materiality had to be judged against the express concession made for the purposes of the inquiry. The inability to articulate how the EWCS was material showed that on a common sense approach that the report would have made no difference.[54]On Appeal B the first defendant observes that the main issues make no reference to housing supply or housing generally. The main issues refer to whether the development was a sustainable form of development. Paragraph 13 of the decision letter records the inspector’s finding that that is what the application would be.[55]What was material in Appeal B were site specific considerations. It was a section 78 appeal against a refusal of an application under section 73A for an individual dwelling where the issues were not materially impacted by an assessment of the soundness of a plan dealing with strategic issues and overall housing supply.[56]The decision letter referred to the absence of a five year housing supply (paragraph 5) and, as a consequence, the proposal was to be assessed against relevant policies within the NPPF. Whilst the Core Strategy was not adopted that was the correct approach.

Discussion and Conclusions

[57]I will deal with each appeal separately although some issues will be common to both.

Appeal A

[58]The duty to have regard to material consideration applies up to the time the decision maker (in this case the inspector) makes his decision: see Kides. The decision on the appeal is made when the parties are notified of the decision in the decision letter: see rule 19 of the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000. That means that up until that time the appeal inspector is seized of the appeal even though he may have submitted his or her decision letter to PINS some weeks earlier. None of those propositions was disputed.[59]In the case of Wainhomes (South West) Holdings Ltd (supra) the appeal concerned a proposal to build up to fifty houses in Wiltshire. There was conflict with the development plan and central to the determination of the appeal was whether there was a supply of deliverable sites sufficient to provide a five year housing supply against the relevant housing requirement. That involved a consideration of whether strategic sites in Wiltshire’s Core Strategy should be included in the housing supply. After the public inquiry closed another inspector made two decisions on sites in Calne based upon an approach to housing supply which excluded strategic sites from the supply of deliverable sites. The Calne decisions were sent promptly to the inspectorate on 26 September by those acting for the appellant. Those decisions were not considered by the appeal inspector whose decision was made on 5 October with no reference to the Calne decisions. On 2 October PINS had emailed the appellant’s agent saying that his email had been received too late to be considered by the inspector. The Calne decision letters were found by the court to be material considerations which led to a real possibility that the appeal inspector, if he had seen the Calne decision letters, would have reached a different conclusion. There was no evidence before the court to suggest that the inspector or anyone on his behalf carried out a reasoned assessment of the materiality of the decisions. As such Stuart Smith J was driven to conclude that the inspector had failed to exercise his discretion properly in failing to admit the decision letters. If he had done he would have concluded that the considerations in favour of admitting the decisions outweighed those in favour of excluding them.[60]Both defendants submit that Wainhomes is not relevant as it was a case where the inspector exercised his discretion not to entertain the Calne decision letters. Here the position is one of apparent inaction. I reject that submission. Wainhomes is a decision where no reference was made to the Calne decision letters in its appeal decision and there was no evidence from the inspector or from PINS as to what had occurred other than the email that the Calne decision letters were submitted too late. The submission of lateness was rejected, in the circumstances of the case, by Stuart Smith J. The absence of any reference on the part of both inspectors in Appeal A and Appeal B when PINS had been notified of its existence has certain similarities with the Wainhomes case.[61]Whilst there is evidence from the inspector here it is to the effect that he was, at all times, unaware of Mr Wilmott’s emails of 3 and 9 December 2014 and the EWCS inspector’s report. It follows that the only conclusion that can be drawn is that, despite two requests to do so by the claimant, PINS officers did not forward, at any time, the EWCS’s report to the appeal inspector or Mr Wilmott’s request that it be considered. No explanation is before the court as to why that was the case.[62]That leads on to the fundamental issue of whether the EWCS’s report was a material consideration. In my judgment it was.[63]The reasons for that are: i) the main issues in the appeal included an assessment of housing needs in Wiltshire which was one of the very matters that the EWCS was dealing with; ii) the fact that the report into the EWCS concluded that the housing requirement figure of 42,000 was sound meant that objections to the use of that figure which had hitherto existed and which existed at the time of the public inquiry were resolved in favour of the claimant. The figure of 42,000 was to be subject to an early review and all the other caveats relied upon by the defendants but the fact of its acceptance meant that there was a shift in the housing requirement landscape. That meant that continued use and reliance upon a 44,000 requirement figure was put into doubt; iii) once the Core Strategy was adopted which was to be considered in the immediate future, namely, 20 January 2015, 42,000 would be the appropriate housing requirement figure to use and would have the weight of the development plan behind it; iv) Although housing was being looked at in the development plan context, as opposed to a necessary snapshot at an appeal, and, in this case, was not examined in any great detail as it was common ground during the appeal that there was a shortfall of housing supply that was against an agreed housing requirement figure of 44,000 based upon objectively assessed need. The EWCS inspector’s report found that it was appropriate to adjust the housing requirement figure to 42,000. At the very least that finding cast doubt on the extent of the agreed position of shortfall at the public inquiry given the prospective change to the requirement figure. At the other end of the spectrum it meant that the claimant may have moved from housing land shortfall to having a five year supply of housing land.[64]Against that background it is evident that the report was material in that it was a factor to be placed into the decision maker’s scales and of some weight in the decision maker’s process. It may not have been determinative but it did not have to be. The EWCS report cast doubt on the concession made by the Council that it did not have five year housing land supply and/or updated the position from one of deficit at the inquiry to one where a different housing position appeared likely to be the case. In other words, the report affected the position on housing needs in Wiltshire which were defined as one of the main issues in the appeal. The report also progressed the Core Strategy closer to adoption thus affecting the weight to be attached to it. The appeal inspector did not have to follow the findings of his colleague but he needed to take them into account and express reasons for how he dealt with those findings.[65]Undoubtedly, it would have been better if the claimant had made its position clearer in its emails of 3 and 9 December 2014 as to what its stance was on housing land supply and how it contended the report was material but, ultimately, the issue of materiality was a matter for the appeal inspector to consider. He did not consider the issue, apparently, because he was given no opportunity to do so by the relevant officers at PINS.[66]When confronted by a party contending, in accordance with PINS own advice, that there has been a material change in circumstance it is no answer to simply sit on the request to forward the information to the inspector even if the inspector’s decision letter has been received by PINS Dispatch Department. At the material time here it had not been received although it was later on 3 December 2014. There must be some administrative mechanism for notifying the inspector and enabling a decision letter to be recalled, supplemented or amended whichever is appropriate. It may be that such a system is in place, given the facts in Appeal B, but, in the absence of any evidence about it, the court is driven to conclude that the administrative procedures in place were, in the circumstances of this appeal, not fit for purpose. Failing that, if they were in place some error prevented them from operating as they should have done here. Until the decision letter is issued the responsibility for it remains with the inspector. It is for him to determine, in the first instance, whether a circumstance is material or not. As it is that did not happen here.[67]There is a further point. The claimant was one of the main parties to the appeal. As set out it followed PINS own advice by notifying it of an apparent change of circumstance. It followed up that initial notification by the subsequent email on 9 December 2014. It was not fair to the claimant for the first defendant to not forward the emails and contents of the EWCS report on to the inspector and, apparently, to remain inactive.[68]Of course, fairness works both ways. The second to fourth defendants say that they had no knowledge of any of the events until after the decision letter was sent out. They were taken by surprise by what had happened: they lost the opportunity of making representations on the EWCS report. They did. They are an unwitting victim of whatever flaw there was in the first defendant’s systems that operated in this case. The series of events was singularly unfortunate so far as the second to fourth defendants are concerned. But that does not avoid or excuse the legal error in play here.[69]The first defendant submits that there was little difference in approach between the appeal inspector and the EWCS inspector and that the appeal decision letter and the report are not inconsistent. The appeal inspector referred to the emerging local Core Strategy and so clearly took it into account. He was aware that it could redress the housing supply position and considered what weight should attach to it. That was a matter for his planning judgement. It is correct that matters of weight are exclusively for the inspector as part of his planning judgement. The problem here was that the appeal inspector’s judgement was exercised on the erroneous basis that there remained a dispute as to the housing requirement figures due to outstanding objections and the EWCS’s inspector’s previous report of December 2013. The resolution of the outstanding objections and the verification of the claimant’s housing requirement figure may have made no difference to the appeal inspector’s ultimate decision but, in my judgment, there was a real possibility that it might have done.[70]The second to fourth defendants submit that the exercise engaged in by each inspector was materially different. The appeal inspector was dealing, necessarily, with a snapshot in time. Housing supply is very fluid. The EWCS was dealing with housing supply over the prospective plan period. The context is important. The claimant never warned PINS or the other parties that the EWCS report was on its way or apply to have the inquiry re-opened. The EWCS report was more nuanced than that of the section 78 inspector because of the different exercises that they each had to carry out. But the approaches of the inspector’s were parallel and not materially different. A common sense approach is urged.[71]The exercises done by each inspector were different and were parallel but that of the EWSC inspector had the potential to impact upon that done by the appeal inspector. Even if the five year supply was regarded as a snapshot at an agreed base date and cognisant of the fluid nature of housing figures the fact that a revised housing requirement figure was accepted in the EWCS process was capable of influencing the views of the appeal inspector. There is no evidence as to the difference that a figure of 2,000 makes to the housing situation supplied by the claimant but the fact of a revised housing requirement was sufficient to enable the EWCS inspector to find that a five year supply was met on the evidence before him. As set out the revised housing requirement figure might have made a difference to the consideration of the appeal inspector. Whilst it is right that the claimant did not appraise the other parties of its submission to PINS it was only if the EWCS report was found to be a material consideration that the other parties were entitled to express their views upon it. In itself, the conduct of the claimant was not in error and could not be described as unreasonable.[72]It follows that I find that the claim succeeds in Appeal A. The second to fourth defendants though contend that the claimant has suffered no prejudice and that the court should, in the circumstances exercise its discretion not to quash the decision.[73]I am satisfied that the claimant has suffered prejudice in that planning permission has been granted for a development contrary to development plan policy on a basis which was or may have been in error, namely, housing need.[74]As to discretion that is harder. The second to fourth defendants were not on notice that they should be doing something, they lost the opportunity to make representations to PINS and if the decision is quashed the application will be re-determined against a revised development plan situation. None of that is of their making. However, the fact is that it cannot be said as per Simplex GE (Holdings) v Secretary of State for the Environment and the City and District of St Albans District Council [1989] 57 P & CR 306 that the decision would have been the same. That is just not known. In the circumstances and, with a degree of reluctance, I find that I am unable to exercise my discretion not to quash the decision letter.

Appeal B

[75]I can deal with matters much more shortly. The background is set out above. In Appeal B it has to be recalled that what was at issue was whether planning permission should be granted for a single residential unit without compliance with an occupancy condition.[76]The housing situation was relevant because of the nature of the development. However, the main issues were threefold of which one was whether what was proposed was sustainable.[77]Considerable attention was given by the inspector to highways considerations, living conditions on the part of the existing occupiers of The Chase and precedent each of which would be totally unaffected by the overall housing situation.[78]The housing position was considered as part of the social and economic considerations of sustainability. At most housing was a subset of those facets of sustainability. The development had been partially carried out. Even in her consideration of the social and economic aspects the decision did not rest exclusively upon the housing situation across the district. She found that on the environmental aspect that what was proposed did not represent a visual intrusion into the countryside and preserved the character and appearance of the surrounding area. Her overall conclusion on sustainability may well have been the same.[79]In those circumstances I find it quite impossible to say that had the appeal inspector considered the materiality of the EWCS report which in Appeal B was sent to her, albeit after her decision letter was submitted to the Dispatch Department of PINS, and which she should have considered that it would have made a difference to her decision. Although the appeal inspector was clearly in error, given the subsidiary nature of housing as an issue in Appeal B, it was not one that clearly affected the outcome of Appeal B. In those circumstances Bolton is clear it is not appropriate to quash the decision.[80]For those reasons the challenge to Appeal B fails.[81]I invite submissions on the final order and costs.

Cited in 3 later judgments