Gladman Developments Ltd v Secretary of State for Communities And Local Government & Anor [2017] EWHC 2448 (Admin)

[2017] EWHC 2448 (Admin)Case No CO/457/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 06/10/2017
Before
MR JUSTICE JAY
Between
GLADMAN DEVELOPMENTS LIMITEDClaimant
Mr Richard Kimblin QC (instructed by Irwin Mitchell LLP) for ClaimantMr Tim Buley (instructed by Government Legal Department) for First DefendantNo appearance by the Second DefendantHearing Hearing date: 26 th September 2017
Judgment Approved

Introduction

[1]By this claim for statutory review brought under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) with the permission of Lang J, the Claimant (“Gladman”) seeks the intervention of this Court to quash the decision of the First Defendant (“the Secretary of State”) given on 21st December 2016 dismissing Gladman’s appeal against the refusal of the Second Defendant (“the LPA”) to grant planning permission for up to 180 dwellings, open space, associated infrastructure and highways access at a site called Land North of Lower Lane, Berry Hill, Coleford, Gloucestershire (“the site”).[2]The LPA’s refusal to grant planning permission for this development was appealed to the Secretary of State’s Inspector, Mrs K. A. Ellison BA MPhil MRTPI pursuant to section 78 of the 1990 Act. She opened a public local inquiry on 17th November 2015 which sat for 7 days and closed on 4th December 2015. On 22nd January 2016 the Secretary of State directed that he would recover and decide the appeal for himself under statutory powers.[3]The Inspector’s report recommending the grant of planning permission was promulgated on 25th February 2016. The Secretary of State’s decision letter rejecting the Inspector’s recommendations and dismissing the appeal was not issued until 21st December 2016. This delay is regrettable but does not give rise to a separate ground of challenge.[4]The issues raised by this section 288 are narrow, thereby reducing the need for any extensive iteration of the facts. I derive all of the latter from the Inspector’s comprehensive report. For reasons of economy, I will be referring to the numbered paragraphs in the Inspector’s report as [X.Y], and to those in the Secretary of State’s decision letter as [DLX].

The Inspector’s Report

[5]The site was described in detail at [2.1]. In broad outline, it comprises a number of fields currently in agricultural use occupying an area of 10.88 ha. The site is contiguous with the existing settlement boundary or built up area of Berry Hill; it is also close to the Wye Valley Area of Outstanding Natural Beauty. It was therefore obvious that one of the key issues for the Inspector to determine was the visual impact of the proposal and its effect on the landscape [10.1(i)].[6]Within the development plan two policies were relevant. Local Plan policy (R) F. Coleford 11, adopted in 2005 as part of the LPA’s Local Plan, provides that an area of land between Berry Hill and Milkwall, and encompassing the site, will be retained primarily as open countryside. The LPA’s Core Strategy, adopted in February 2012, included Policy CSP.1 which set out a wide range of matters to be considered, including the effect of any impact on the landscape; it also stated that development which is not able to be accommodated satisfactorily in respect of the various considerations will not be permitted.[7]The Inspector identified as one of the main issues in her Inquiry, “[w]hether the Council can demonstrate a five-year supply of deliverable housing sites” [10.1(v)]]. She subjected that issue to thorough analysis, and concluded at [14.51] as follows:
“On that basis, the supply of deliverable sites is likely to be in the region of 1,900 sites, which would be a substantial shortfall against the 2,544 required to meet the full, objectively assessed need.”
The Inspector did not consider it necessary to perform the basic arithmetic, but the parties point out that the resulting figure yields a housing supply of 3.73 years, subject to the observation that the Inspector has used the phrase, “in the region of”. The substantial shortfall arises in the context of the National Planning Policy Framework which requires LPAs to promulgate housing policies operative over a five-year period.[8]The Inspector’s overall planning judgment was that the proposal would be harmful in terms of its impact on the landscape and its visual effect. However exactly how this was quantified by her is immaterial for present purposes because(1) the Secretary of State did not materially disagree, and(2) in any event, no issue arises in this application in relation to the latter’s assessments at DL18-23.[9]The critical section of the Inspector’s report appears at [14.52] – [14.61]. The Inspector considered that the proposal would be contrary to the development plan to the extent that it was harmful to the landscape. Nevertheless, this conflict fell very much to the attenuated for the following reasons:
“14.53 … However, whilst this policy [(R) F. Coleford 11] is primarily one for the protection of the countryside, it is undoubtedly also the case that its coverage was defined on the basis of settlement boundaries which have not been reviewed for some time. These boundaries were defined in the context of long outdated assessments of population and housing levels. 14.54 On that count, I consider that it is not consistent with NPPF. This has particular significance for this appeal because of the location of the appeal site, at the edge of one of the settlements. Given my findings as to the lack of a deliverable housing supply and the emphasis in NPPF on significantly boosting the supply of housing, this greatly diminishes the weight which the conflict with this policy should carry in the overall planning balance. In addition, since the conflict with CSP.1 is contingent on the conflict with policy (R) F. Coleford 11, the weight which that should carry in the planning balance should also be reduced.”
[10]The Inspector concluded that the proposal was in conflict with emerging policies, but that the weight to be accorded to this (already reduced by the emergent nature of these policies) was further mitigated by the fact that the aims of the policy had not yet been assessed against the objectively assessed housing need (“the OAN”) [14.55]. Similar reasoning is apparent in relation to the “best and most versatile agricultural land” issue [14.56], although in that context mention was specifically made of the supply of deliverable housing sites falling “well short” of the OAN.[11]The Inspector further concluded that the proposal would bring “a range of associated benefits”, all of which were in one way or another related to the substantial contribution it would make to addressing the shortfall in housing land supply, “bearing in mind the high level of needs identified” [14.57]. Then:
“14.58 In view of the reduced weight to be accorded to the conflict with the relevant development plan policies, I consider that these benefits would be more than sufficient to outweigh that conflict … 14.60 The balance in this case is whether the adverse impacts would significantly and demonstrably outweigh the benefits. To my mind, the adverse impact on the landscape would not be sufficient to significantly and demonstrably outweigh the range of benefits associated with the proposal, particularly the provision of market and affordable housing. 14.61 Although the proposal would be in conflict with relevant policies of the development plan, the weight to be attached to that conflict is diminished by reason of inconsistency between those policies and NPPF. Applying the presumption in favour of sustainable development, the harm to the landscape would not significantly and demonstrably outweigh the benefits of the proposal, especially in view of the contribution to housing in the context of the shortfall in deliverable sites. These considerations are sufficient to outweigh the conflict with the development plan.”
[12]The Inspector accordingly recommended to the Secretary of State that the appeal should be allowed.[13]In her Costs Report issued on the same day as her substantive report, the Inspector explained as one of her reasons for refusing Gladman’s application for costs on the grounds of unreasonable behaviour, the following:
“23. Secondly, the extent of the shortfall was a factor within the overall planning balance, particularly in relation to the weight which could be accorded to development plan policies which were partly reliant on settlement boundaries and in relation to the use of the best and most versatile agricultural land. In the context of the Council’s case on landscape impact, a clear assessment of any shortfall was necessary in order to reach a balanced decision on the planning merits of the proposal.”

The Secretary of State’s Decision

[14]The Secretary of State agreed with the majority of the Inspector’s planning judgments. I propose to identify his core reasoning and highlight the material differences. The following paragraphs of the Secretary of State’s decision letter are relevant:
“DL25. The Secretary of State’s conclusions on housing need and supply are set out below at paragraphs 29-30. He considers that taking these conclusions into account, and also taking into account the aims of paragraph 47 of the Framework, a need for housing has been demonstrated. However, he does not consider that this translates directly into a need for housing on this specific site. In view of the adverse impacts on landscape and visual effect which weigh against the use of this particular site for housing, he considers that the use of best and most versatile agricultural land carries moderate weight against the proposal. …… DL29. The Secretary of State has carefully considered the Inspector’s analysis of housing need and supply at IR14.21-14.45. However, as set out on the Council’s website, matters have moved on since then, with further progress being made on determining the housing requirement and supply. The Council’s Draft Housing Supply Note of 25 November 2016 states that with the backlog being addressed over 10 years, there is a 5.4 years supply, while addressing the backlog over 5 years gives a 5.16 years supply. Once the Inspector and the Council have agreed the revised housing requirement and consultation material, these Focused Changes will be subject to public consultation. The Inspector will then decide if further hearings are required before Main Modifications to the emerging Allocations Plan can be finalised. DL30. While the Council currently claim a more than 5-year supply, consultation on their analysis has not yet been undertaken. The Secretary of State considers that on the basis of the material before him, he cannot yet conclude that the Council’s analysis is robust or that a 5-year supply of housing land has been adequately demonstrated. He considers that the shortfall has improved since the inquiry, and that there is currently likely to be a housing land supply in the range between 3.7 years and 5 years. He therefore considers that paragraph 14 of the framework is engaged. DL31. Having taking into account of paragraph 49 of the Framework, your representation of 4 May, and the circumstances of this case, the Secretary of State considers that policy (R) F.Coleford 11, which serves to protect the open countryside from development; Policy CSP.4, which indicates that most changes in town and villages will be expected to take place within the existing settlement boundaries; and Policy CSP.5, which deals with housing, should not be considered as up-to-date for the purposes of paragraph49 of the Framework. He also considers that emerging policy AP64 and the settlement boundary set out in the emerging Berry Hill, Christchurch and Edge End Neighbourhood Development Plan are not up-to-date for the purposes of paragraph 49 of the Framework. He has gone on to consider the weight which should apply to these policies in the light of paragraph 215 of the Framework. DL32. The Secretary of State has carefully considered the Inspector’s analysis at IR14.52-14.55. He has taken into account that the coverage of policy (R) F. Coleford 11 was defined on the basis of settlement boundaries which have not been reviewed for some time, and that those boundaries were defined in the context of long outdated assessments of population and housing levels (IR14.53). He considers that this reduces the weight which attaches to that policy. However, as the Inspector also states at IR14.53, this policy is primarily one for the protection of the countryside, and the Secretary of State considers that its overarching aim is consistent with the Framework’s aim of conserving and enhancing the natural environment, for example at paragraph 17. He agrees with the Inspector at IR14.53 that policy (R) F.Coleford 11 is not consistent with national policy simply because it seeks to protect a landscape which is below the level of national designations. He considers that this policy carries moderate weight. DL33. The Secretary of State notes that the strategic objective of policy CSP.4 is to promote thriving sustainable communities and facilitate regeneration, and that the strategic objective of CSP.5 is to promote thriving sustainable communities and provide affordable housing. He considers that these aims are consistent with the Framework’s focus on sustainable development, and carry moderate weight. …. DL37. The Secretary of State has had regard to s.38(6) of the Planning and Compulsory Purchase Act 2004. He has found conflict with policies (R) F.Coleford 11, CSP.1 and CSP.4. Because of the fundamental nature of the conflict with policies (R) F.Coleford 11 and CSP.4, he considers that the appeal proposal does not accord with the development plan taken as a whole. He has taken into account that policies (R) F.Coleford 11, CSP.4 and CSP.5 are out of date by virtue of the lack of a 5-year housing land supply and paragraph 49 of the Framework. DL38. Given that these policies are out of date, the Secretary of State considers that paragraph 14 of the Framework is engaged. He has therefore considered whether the adverse impacts of granting permission would significantly and demonstrably outweigh the benefits, when assessed against the Framework policies as a whole. DL39. The Secretary of State has concluded overall that the landscape impact carries moderate weight against the proposal. He further considers that the adverse impact in terms of visual effect carries significant weight, and the use of best and most versatile agricultural land carries moderate weight against the proposal. …. DL41. The Secretary of State considers that the contribution to housing, including 40% affordable housing, is a substantial benefit which carries substantial weight in favour of the proposal, and that there would be a small net benefit from the open space, community park and woodland parking, to which he attributes limited weight. He agrees with the Inspector’s assessment at IR14.59 that the proposal would also bring economic benefits, particularly in relation to investment and employment in construction. He attributes moderate weight to the economic benefits. DL42. Having carefully considered all the material considerations in this case, the Secretary of State considers that the adverse impacts of granting permission would significantly and demonstrably outweigh the benefits, when assessed against the Framework policies as a whole. There are no material considerations that indicate that the appeal proposals should be determined other than in accordance with the development plan.”
[15]Aside from DL29 and 30, the controversy as to which lies at the heart of this application and must therefore be considered in more detail in due course, it may be said that the areas of difference or divergence of view between the Inspector and the Secretary of State reside in the following respects:(1) use of best and most versatile agricultural land: Inspector, “should carry limited weight against the proposal” [14.56]; Secretary of State, “carries moderate weight against the proposal” [DL25].(2) policy (R) F. Coleford 11: Inspector, “[g]iven my findings as to the lack of deliverable housing supply … this greatly diminishes the weight which the conflict should carry in the overall policy balance” [14.54]; Secretary of State, “he considers that this policy carries moderate weight” [DL32].(3) the Inspector’s conclusion on CSP.1, said to be contingent on (R) F. Coleford 11, is not reflected in the Secretary of State’s decision letter, but in my view nothing turns on this. CSP.4 and CSP.5 [DL33] are not expressly referred to by the Inspector, although may well be embraced within her overall conclusion on the planning merits. DL33 is, of course, a factor in favour of the proposal.(4) critically, the Inspector’s [14.61] differs from the Secretary of State’s DL42.[16]At this stage I observe that DL41 does not differ materially from [14.57] in terms of the language used, save to the extent – and this may be important – that the Inspector refers expressly to “the high level of need identified”.

The Secretary of State’s Evidence

[17]The Secretary of State has submitted a brief witness statement from the author of the decision letter, Ms Maria Stasiak, dated 18th April 2017. The principal purpose of this witness statement was to address Gladman’s case on delay in respect of which permission was later refused by Lang J. However, Mr Tim Buley for the Secretary of State continues to rely on this witness statement for present purposes. The following matters emerge, without prejudice to the objections of Mr Richard Kimblin QC for Gladman as to their admissibility and relevance:(1) The Secretary of State deemed it necessary to invite further representations from the parties on relevant Court of Appeal authority.(2) Two Ministers separately indicated that planning permission should be refused on 7th July and 1st August 2016 respectively. This was before the Department went onto the LPA’s website, pursuant to its “routine practice”, “to see whether there have been ... changes to the status of any emerging plan or policies, which may require a reference back to the parties”. I interpolate that the results of this exercise appear at DL29.(3) “If changes have occurred, but they are not material to the decision, then no reference back will be made, as no reliance will be placed on the material. If changes are material, we consider whether the matter needs, as a matter of fairness, to be referred back to the main parties” (paragraph 11).(4) “we considered the Council’s website in and around November/December 2016 when finalising the decision letter and identified the Draft Housing Supply Note. However, we did not consider that this Note and the information in it was material to the decision since the Note was only in draft and was subject to further consideration and reconsideration” (paragraph 12).

The Legal Framework

[18]I need not set out the provisions of section 288 of the 1990 Act or the principles which should govern my approach in this jurisdiction, as summarised by Lindblom J in R (oao Bloor Homes) v SSCLG [2014] EWHC 754 (Admin), paragraph 19. (I refer to Lindblom, now LJ, on a number of occasions in this Judgment: when his decisions were given at first instance, I will continue to describe him as Lindblom J.)[19]Rule 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 [S.I.2000 No. 1624] (“the 2000 Procedure Rules) provides:
“(5) If, after the close of an inquiry, the Secretary of State— (a) differs from the inspector on any matter of fact mentioned in, or appearing to him to be material to, a conclusion reached by the inspector; or (b) takes into consideration any new evidence or new matter of fact (not being a matter of government policy), and is for that reason disposed to disagree with a recommendation made by the inspector, he shall not come to a decision which is at variance with that recommendation without first notifying the persons entitled to appear at the inquiry who appeared at it of his disagreement and the reasons for it; and affording them an opportunity of making written representations to him or (if the Secretary of State has taken into consideration any new evidence or new matter of fact, not being a matter of government policy) of asking for the re-opening of the inquiry.”
[20]In Hopkins Developments Ltd v SSCLG [2014] EWCA Civ 470, the Court of Appeal addressed in familiar general terms the requirements of procedural fairness in the context of planning inquiries (see Jackson LJ, at paragraph 62).[21]The following provisions of the NPPF are relevant:
“14. At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking. … For decision-taking this means: ● approving development proposals that accord with the development plan without delay; and ● where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless: – any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or – specific policies in this Framework indicate development should be restricted. … 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; … … 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. … 215. In other cases and following this 12-month period [following the date of publication of the NPPF], due weight should be given to relevant policies in existing plans according to their degree of consistency with this framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given).”
For decision-taking this means:

● approving development proposals that accord with the development plan without delay; and

[22]At paragraph 71 of his judgment in Crane v SSCLG [2015] EWHC 425 (Admin), Lindblom J offered the following gloss on paragraph 49 of the NPPF as well as the “tilted balance” in paragraph 14:
“As Ms Lieven and Mr Smyth submit, neither paragraph 49 of the NPPF nor paragraph 14 prescribes the weight to be given to policies in a plan which are out of date. Neither of those paragraphs of the NPPF says that a development plan whose policies for the supply of housing are out of date should be given no weight, or minimal weight, or, indeed, any specific amount of weight. One can of course infer from paragraph 49 of the NPPF that in the Government's view the weight to be given to out of date policies "for the supply of housing" will normally be less, often considerably less, than the weight due to policies which provide fully for the requisite supply. As I have said, Mr Hill points, for example, to an expression used by Males J. in paragraph 20 of his judgment in Tewkesbury Borough Council – "little weight" – when referring to "relevant policies" that are "out of date". In Grand Union Investments Ltd. (at paragraph 78) I endorsed a concession made by counsel for the defendant local planning authority that the weight to be given to the "policies for housing development" in its core strategy would, in the circumstances of that case, be "greatly reduced" by the absence of a five-year supply of housing land. However, the weight to be given to such policies is not dictated by government policy in the NPPF. Nor is it, or could it be, fixed in the case law of the Planning Court. It will vary according to the circumstances, including, for example, the extent to which the policies actually fall short of providing for the required five-year supply, and the prospect of development soon coming forward to make up the shortfall.”
[23]Lindblom J returned to the topic in paragraph 60 of his judgment in Phides Estates (Overseas) Ltd v SSCLG [2015] EWHC 827 (Admin). “It is therefore unnecessary for me to deal with Mr Brown's submission that if the inspector did misconstrue the policy this was not an error that affected her decision. Mr Brown says it made no difference that she had found a shortfall in the five-year supply of housing land on the basis of an annual requirement of 350 dwellings, as opposed to 400. She applied the "presumption in favour of sustainable development" in paragraph 14 of the NPPF anyway, and when she did so she recognized that the 250 dwellings in Phides development would be a "substantial benefit" (paragraph 28 of the decision letter) and "a matter of considerable importance" (paragraph 59). In coming to those conclusions she must have had in mind the "target" of 400 dwellings a year as well as the "requirement" of 350 on which her calculation was based. That may be so. But the fallacy in this submission of Mr Brown, in my view, is that it leaves out the question of weight. Paragraph 14 of the NPPF prescribes an approach to decision-making when relevant policies, including "[relevant] policies for the supply of housing", are "out-of-date". It does not, however, prescribe the weight to be given to the ability of a particular proposal to reduce a shortfall in housing land supply as a benefit to be put in the balance against "any adverse effects". This is a matter for the decision-maker to judge, and the court will not interfere with that judgment except on Wednesbury grounds. Naturally, the weight given to a proposal's benefit in increasing the supply of housing will vary from case to case. It will depend, for example, on the extent of the shortfall, how long the deficit is likely to persist, what steps the authority could readily take to reduce it, and how much of it the development would meet. So the decision-maker must establish not only whether there is a shortfall but also how big it is, and how significant. This will not be possible unless the relevant policies are correctly understood. In this case they were.”[24]This approach was endorsed by Lord Carnwath JSC in paragraph 29 of his judgment in Hopkins Homes Ltd v SSCLG [2017] 1 WLR 1865. However, elsewhere in his judgment Lord Carnwath disapproved what he characterised as Lindblom LJ’s “wider” interpretation of paragraph 49 of the NPPF as articulated in the judgment of the Court of Appeal under appeal to the Supreme Court. In Lord Carnwath’s view, the phrase “relevant policies for the supply of housing” within paragraph 49 should be accorded a narrow interpretation, being limited to policies dealing only with the numbers and distribution of new housing, and not covering “any such policies of the development plan dealing generally with the disposition or restriction of new development in the authority’s area” (see paragraph 48(i) of Lord Carnwath’s judgment, read in conjunction with paragraphs 54-61). These latter paragraphs require close reading, although neither Counsel submitted that they were critical to the outcome of the present application. For that reason I do not set them out. At this stage, it is sufficient to point out that Lindblom LJ has helpfully summarised the present position at paragraph 22 of his judgment in Barwood Strategic Land II LLP v East Staffordshire Borough Council and SSCLG [2017] EWCA Civ 893. I will, however, be returning to this jurisprudence under Chapter H below.

Gladman’s Case

[25]Gladman’s first ground is that the Secretary of State proceeded unfairly and irregularly by relying on matters in DL29 and 30 without complying with Rule 17(5) of the 2000 Procedure Rules and providing an opportunity to the parties to challenge those facts and make representations. In this regard Mr Kimblin submitted that it is clear from these two paragraphs, read as a whole, that the Secretary of State was taking into account new evidence which led him to a materially different factual finding: namely, that the housing land supply fell in the bracket of 3.7 to 5 years, rather than the 3.73 years as found by the Inspector. Had representations from the parties been invited, the Secretary of State would have been informed that(1) pace the first sentence of DL30, the LPA did not “currently claim a more than 5-year supply”, and(2) the real contest between the parties was between Gladman’s figure of 3.65 years and LPA’s figure of 4.15 years. This contest is crystallised in a Statement of Common Ground in separate appeal pleadings dated 27th January 2017. Mr Buley did not take the point that this document post-dated his client’s decision, and in my view he was right not to do so because it is a reasonable inference that the parties could and would have advanced similar representations if these had been sought in November/December 2016. Further, Mr Buley did not object to Mr Kimblin expanding his case, at my suggestion, to cover Rule 17(5)(b) as much as Rule 17(5)(a) of the 2000 Procedure Rules: Mr Kimblin’s skeleton argument had unnecessarily confined himself to sub-paragraph (a).[26]Mr Kimblin submitted that it was sufficient for his purposes to establish a breach of the 2000 Procedure Rules and/or corresponding public law principles of fairness. On my understanding of his argument, it was also his case that, if necessary, he could also demonstrate that the Secretary of State’s breach was relevant to the conclusions reached later in his decision letter.[27]Gladman’s second ground as advanced in writing by Mr Kimblin is that, contrary to the careful analysis undertaken by the Inspector, the Secretary of State failed to appreciate the need to know the extent of the shortfall; and, consequently, ignored a relevant consideration when conducting the overall planning balance. In the alternative, it is contended that the Secretary of State’s conclusions were inadequately reasoned on this aspect of the matter.[28]In oral argument Mr Kimblin refined this ground in the following manner. He argued that the extent of the shortfall did not require precise identification or assessment (although he did not accept that this had ever been his pleaded case). He submitted that it is clear from a careful analysis of DL31-33, and DL37-41, that the Secretary of State has failed to ascribe weight to the extent of the shortfall in the context of the “tilted balance” ordained by paragraph 14 of the NPPF. Contrary to Lindblom J’s approach in Crane and Phides, extent or quantum has not been addressed at all.

The Secretary of State’s Riposte

[29]On the first ground, Mr Buley submitted that there is no material difference between the Inspector’s conclusion relating to housing land supply (viz. 3.73 years) and the Secretary of State’s (viz. “in the range between 3.7 years and 5 years”). This is because the bottom of the Secretary of State’s range matches the Inspector’s figure. In the alternative, Mr Buley submitted that it is clear from DL30 and from the remainder of his client’s decision letter that the Secretary of State was proceeding on the basis of a datum point most favourable to the claimant (i.e. 3.7, rounded down from 3.73), or that any difference between these benchmarks was immaterial to the outcome. The correct interpretation of DL30 was that the Secretary of State did not therefore consider it necessary to say where within the range the instant case fell: it made no difference.[30]Mr Buley accepted that paragraph 12 of Ms Stasiak’s witness statement is inadmissible as unwarranted fresh evidence (see R v Westminster City Council, ex parte Ermakov [1996] 2 AER 302 and R (oao Lanner Parish Council) v The Cornwall Council [2013] EWCA Civ 1290, paragraphs 60-64) unless I should conclude that DL30 is subject to more than one tenable interpretation. In that event, he relied on paragraph 12 as showing that DL30 was immaterial to the overall decision.[31]Mr Buley recruited Ms Stasiak’s witness statement for a separate and additional purpose: given that the chronology demonstrates that Ministers had already decided to dismiss Gladman’s appeal before any recourse was made to the LPA’s website, it is clear that DL30 could not have materially impacted on the outcome.[32]On the same theme, Mr Buley further submitted that he could derive support from the fact that the Secretary of State reverted to the parties on one particular matter (sc. recent Court of Appeal authority) but not on this issue. The inference could therefore be drawn that the Secretary of State must have taken the view that any difference between him and the Inspector in the context of housing land supply was immaterial.[33]Mr Buley took me carefully through DL31-33, and DL37-41 in order to demonstrate that such differences as there were between the Inspector’s and the Secretary of State’s conclusions (as identified by me at paragraph 15 above) were not driven by anything said by the latter in DL30. Particular emphasis was placed on the substantive similarity between [14.57] and DL41.[34]Mr Buley’s answer to Gladman’s second ground was that it was not incumbent on the Secretary of State precisely to quantify housing land supply, and that it is inconceivable that Ms Stasiak, a civil servant with ample experience and expertise in this domain, could have overlooked Lindblom J’s decisions in Crane and Phides. Moreover, it is clear from the Secretary of State’s decision letter read as a whole, in particular the first sentence of DL41, that regard was had to the extent or degree of the shortfall.

Discussion and Conclusions

[35]The Secretary of State was not required to agree with the Inspector’s recommendation: under the statutory scheme, the conclusion in the latter’s report was no more, and no less, than that. In particular, it was open to the Secretary of State to reach his own, and different, planning judgments; and no complaint is made by Mr Kimblin about this. It is not Gladman’s case that DL 29 and 30 are incorrect to the extent that they are apt to be assailed on standard public law principles.[36]I also agree with Mr Buley (as did Mr Kimblin in his oral argument) that it is not incumbent on a decision-maker to alight on any precise figure. Indeed, there is a sense in which any endeavour to attain exactitude in this domain possesses a contrived quality. I have examined the Inspector’s methodology and have no doubt but that she has followed a well-worn path. The methodology does, however, lack precision. It was open to the Inspector to arrive at the conclusion she did (my personal preference would have been to give a range), and to be fair to her she applied the qualification “in the region of” in relation to the numerator of the fraction; it was equally open to the Secretary of State to follow an alternative course.[37]These points having been made, I should not be understood as saying that the Secretary of State’s range has greater validity than the Inspector’s figure. His preference for a range or bracket has the intellectual force I have identified, but the Inspector has done far more than has the Secretary of State to justify the end-point. The reasoning in support of 3.7 to 5 years is sparse indeed, albeit not so exiguous that any section 288 point arises.[38]It is well established in this jurisdiction that decision letters are directed to an informed readership well-acquainted with the issues. It is also the case that they should not be subjected to quite the degree and intensity of critical analysis than would, and should, a judgment of this Court. As it happens, I regard the Inspector’s report as a model of its kind: impeccably reasoned and evidence-based at all material times. The Secretary of State’s decision letter is also reasonably clear although its relative brevity, and ellipsis, in a case of this evidential complexity does not always enable the informed reader to be sure as to what was taken into account at all material times. However, I regard DL29 and 30 as free from ambiguity.[39]This lack of ambiguity does not avail Mr Buley’s argument. In my judgment, DL 29 and 30 are clear. The Secretary of State has gone onto the LPA’s website, and in the result the evidential picture apparently was not the same as it was before the Inspector. So much is made plain by “however”, “matters have moved on since then”, “progress” and “improved”. DL25 makes clear that the Secretary of State’s conclusions on housing need and supply are set out in DL29 and 30, and not elsewhere. In my opinion, it is impossible to contend that the Secretary of State has somehow agreed with the Inspector: it would have been an entirely straightforward matter for him to say just that, and/or to quote with approval the benchmark figure of 3.73. By parity of reasoning, I cannot accept that the Secretary of State must have proceeded on a basis most favourable to Gladman, namely a figure of 3.73. That is not made explicit; there is nothing to indicate that DL29 and 30 constitute an academic exercise or are somehow supererogatory. The Secretary of State could have drawn attention to the website and then said that it was unnecessary to go down this road; he did not do that.[40]Nor can I accept Mr Buley’s submission that that there is no material difference between(1) 3.73 (rounded down if necessary to 3.7) and(2) 3.7 to 5. Language, arithmetic and logic indicate otherwise. The fact that 3.7, at the bottom of the range, is the same as the Inspector’s precise figure ignores the obvious point that the Secretary of State has chosen a range which then moves upwards. The housing land supply figure is anywhere between 3.7 and 5; it is decidedly not 3.7. The position would be different had the Secretary of State given a range of 3.4 to 4, or maybe even 2.4 to 5 (this example requires further analysis); but we are not concerned with these hypotheses. They do, however, illustrate my point.[41]In my judgment, therefore, DL29 and 30 are commendably clear and Mr Buley accordingly accepts that the final sentence of paragraph 12 of Ms Stasiak’s witness statement is inadmissible. In any event, this sentence does not avail his argument even were it to be admitted because it asserts that DL30 is immaterial for a reason which(1) contradicts what DL30 actually says, and(2) does not lend express support to the submissions advanced by Mr Buley. Ms Stasiak does not say, for example, that the Secretary of State was content to proceed on the basis of a housing land supply figure of 3.73, and that DL30 contains a hypothetical conclusion.[42]I am prepared to accept that Ms Stasiak’s witness statement is probably admissible evidence in these proceedings in a different context: namely, Mr Buley’s submission that Ministers had already determined to dismiss Gladman’s appeal before any new evidence was visualised. I agree that the inference must be that Ministers’ conclusion must have been predicated on a housing land supply figure of 3.73 years. However, whatever decision was reached in the summer of 2016 is not the relevant decision for present purposes (see Rule 18 of the 2000 Procedure Rules which identifies that decision); and no reasons are available. The only relevant decision is the one which the Secretary of State has seen fit to promulgate, being his final decision with detailed reasons. That decision is predicated on DL29 and 30, with consequential reasons expounded for the conclusion. The final decision supersedes whatever may have been the basis for the earlier decision, which has the status of a draft.[43]To the extent that any onus resides on Gladman to show that it could have made material representations to the Secretary of State in relation to the new evidence, I have no doubt but that this has been discharged: see paragraph 25 above, and the competing figures being advanced by Gladman and the LPA in separate appeal proceedings.[44]What I have called the linguistic, arithmetical and logical distinction between [14.51] and DL29 and 30 would not matter if (and only if) there were no material legal distinction between the relevant figures. However, Mr Buley concedes that there is such a legal distinction, because he accepts the correctness of Lindblom J’s two decisions.[45]Mr Kimblin pins his colours firmly to a breach of Rule 17(5) of the 2000 Procedure Rules, although on my understanding of his argument he discerned little if any material difference between the regulatory test and the common law. I agree. In my judgment, both sub-paragraphs (a) and (b) are applicable, although the principal focus should be on (b). The Secretary of State has differed from the Inspector on a matter of fact (a). The reason why he has done so is because he has taken into account new evidence (b). Mr Buley submitted that it has not been established – the burden being on the Claimant – that it was “for that reason [that the Secretary of State was] disposed to disagree with a recommendation made by the Inspector”, but in my judgment he has misconstrued this clause. Rule 17(5) is not activated if the Secretary of State discovers new evidence but decides at that juncture not to take it into consideration (see the opening words of (b)), but in the evidence that he does, or is minded to, he must at that stage seek further representations from the parties if he considers that the new evidence is likely to form the basis, in whole or in part, for the ultimate recommendation reached. The Secretary of State does not have to be satisfied that the new evidence would constitute the sole reason for a different recommendation; it merely has to form part of the decision-making process. Furthermore, the Rule says “disposed to disagree” which to my mind imports a lower threshold. As I have said, Rule 17(5) would not apply if the Secretary of State has reached the firm and fixed conclusion that the new evidence will not be taken into account or is clearly immaterial; otherwise, however, it does apply.[46]The only clue to the Secretary of State’s thought-process at the time the Rule 17(5) decision was made is to be found in paragraphs 10-12 of Ms Stasiak’s witness statement. I have already concluded that the final sentence of paragraph 12 is not consistent with DL29 and 30. The obligation under Rule 17(5) is a continuing one, and in my judgment once these paragraphs of the decision letter had been finalised it was incumbent on the Secretary of State to activate Rule 17(5).[47]I reject Mr Buley’s submission that his client may derive support from the fact that(1) he clearly applied his mind to Rule 17(5) because he decided to revert to the parties on recent Court of Appeal authority, and(2) DL31-33 and 37-41 demonstrate that DL30 was immaterial to the outcome. This submission has the appearance of bootstraps reasoning. Reverse inferences may occasionally be drawn in this sort of situation, but in my view only sparingly, and where it is clear from subsequent paragraphs that the outcome did not depend on any stated premises. The correct analysis starts at the right place, which is DL29 and 30, and does not reason backwards. I have found that these paragraphs are clear, and that a breach of Rule 17(5) has occurred. The next step is to consider whether that breach made a difference to the outcome, but in this regard the onus is on the decision-maker, and not on the Claimant, to demonstrate that it did not. In oral argument Mr Buley touched on the test in Simplex GE (Holdings) Ltd v SSE [1988] 3 PLR 25, 42 (noted in Fordham, along with more recent decisions, at paragraph 4.4.4), and in my view it highlights the correct approach. There is a high onus on the Secretary of State to show that the Rule 17(5) breach made no difference to the outcome. It is through this prism - “[the Claimant] has to exclude only the contrary contention, namely that the Minister necessarily still have made the same decision” [per Purchas LJ] – that later paragraphs in the decision letter should be examined.[48]The Inspector’s approach was that the degree of the shortfall was relevant at two stages of the analysis: first, in relation to the assessment of the degree of consistency with the development plan and national policy; secondly, in the overall planning balance. It is clear from paragraph 23 of her decision letter in relation to costs that the Inspector placed greater emphasis on the first stage rather than the second. It was Mr Buley who referred me to paragraphs 57-61 of Lord Carnwath’s judgment in Hopkins Homes (he did not draw my attention to paragraphs 54-56, which in my view are at least as important); and later Mr Kimblin referred me to Lord Gill. I asked Mr Buley at least once whether it was his submission that Lord Carnwath’s judgment impacted on the correctness of the Inspector’s approach, and he said that it was not. Mr Buley did submit that matters of weight were for the decision maker, and support for that proposition, if it be required, is to be found in several places in Lord Carnwath.[49]I consider that it is at least arguable that Lord Carnwath’s judgment in Hopkins Homes achieves a difference in emphasis, particularly given that he expressly disapproved Lindblom LJ’s wider approach in the Court of Appeal. Once a five-year supply has not been demonstrated, paragraph 14 of the NPPF is triggered and the “titled balance” operates. It is unnecessary to determine whether other policies are “out-of-date” or not; in any event, paragraph 14 can only be triggered once. [R] F. Coleford 11 and CSP.1 are not “policies for the supply of housing” within the meaning of paragraph 49 of the NPPF. The local plan was published in 2005 and in that sense matters have moved on, but it is not technically “out-of-date” in the sense comprehended by the NPPF. Inconsistency with the development plan falls to be addressed under paragraph 215 of the NPPF and not paragraph 14. Arguably, housing shortfall is only marginally or contingently relevant to the paragraph 215 question. Arguably, the correct approach, once paragraph 14 is triggered, is to undertake the overall planning judgment in one composite stage and not two. In that composite assessment paragraph 215 issues would fall to be addressed, including the extent to which inconsistency was established in the light of the relative age of non-housing policies within the development plan which have a contingent or indirect impact on housing policies.[50]I must emphasise, however, that I am merely sketching out arguments, not basing this Judgment on their correctness. Counsel did not address me on the foregoing matters. I must proceed on the basis of Mr Buley’s concession, and I also observe that even if the arguments I have just adumbrated represent the correct view of the law their application would make no difference to the outcome in this case. One factor enabling me to reach that conclusion is that it is reasonably clear that the Secretary of State’s overall methodology did not deviate significantly from the Inspector’s, particularly in relation to the status of the relevant policies in the development plan. Given that the Supreme Court’s decision in Hopkins Homes post-dated both decisions, this may not be particularly surprising.[51]I had reached the point where I had found that the Secretary of State was in breach of Rule 17(5) of the 2000 Procedure Rules, and the sole remaining issue under the rubric of Gladman’s first ground was whether Mr Buley could show that his decision would necessarily have been the same had the breach not occurred. The premise of ground 1 is that the Secretary of State took into account the extent or degree of the housing shortfall, and therefore applied the law as enunciated by Lindblom J, as affirmed on this aspect by Lord Carnwath at paragraph 29 of his judgment in Hopkins Homes.[52]In my judgment, on the premise I have just outlined, it simply cannot be demonstrated that the DL29 and 30 factual finding did not permeate subsequent paragraphs in the decision letter, and there are affirmative indications that it did. Looking at the matter negatively, I have read and re-read DL31-41, and there is nothing to indicate that the Secretary of State deviated from DL29 and 30, alternatively was proceeding on the basis of the Inspector’s lower figure. Looking at the matter affirmatively, I have already highlighted the specific differences between the Secretary of State’s DL32 and the Inspector’s [14.54] in terms to the weight to be accorded to policies within the development plan. Mr Buley’s most effective submission was that DL41 was no different from [14.57], and that was critical. My initial attraction for that submission has diminished in the light of further analysis of what DL41 says. The Inspector expressly bore in mind “the high level of need identified”. On the assumption that the Secretary of State applied his mind to the same general question, and DL41 does not explicitly state that he did, the assumption must be that he did so on the basis of a lower level of need. That must flow from my conclusion that 3.73 is not the same as 3.7-5. Furthermore, I do not consider that the concepts of “substantial benefit” and “substantial weight” can be given a precise meaning; they are on a continuum. 3.73 years represents a more substantial shortfall than the Secretary of State’s DL30 finding. Mr Buley cannot show that the balancing exercise conducted under DL42 would have been the same on the lower figure.[53]Accordingly, Mr Kimblin’s ground 1 has been made out and the application for statutory review succeeds on that basis.[54]I pointed out to Mr Kimblin that he could not succeed on both ground 1 and ground 2. This is because, if (but only if) the Secretary of State did not take matters of extent and degree of shortfall into account, it would inevitably follow that DL30 was immaterial, and ground 1 would fail. That said, DL30 would be immaterial because the Secretary of State had committed a legal error in failing to take a relevant consideration into account. Morton’s Fork applies to Mr Buley’s submissions as much as it does to Mr Kimblin’s, and in my judgment ground 2 is made out in the event that I am wrong about ground 1. This is very much a fall-back position, because it is inherently unlikely that the Secretary of State was unaware of Lindblom J’s brace of decisions.

Conclusion

[55]This claim for statutory review under section 288 of the 1990 Act succeeds, the Secretary of State’s decision letter dated 21st December 2016 must be quashed, and the appeal remitted to him for reconsideration. I invite Counsel to agree the form of Order.

Cited in 1 later judgment