Secretary of State for Communities and Local Government v BDW Trading Ltd (t/a David Wilson Homes (Central, Mercia and West Midlands))

In this appeal we have to consider whether an inspector deciding an appeal against a refusal of planning permission failed to discharge the duty, under section 38(6) of the Planning and Compulsory Purchase Act 2004, to make the decision in accordance with the development plan unless material considerations indicated otherwise. This is not the first occasion on which the section 38(6) duty has been the focus of an appeal to this court.

The appellant, the Secretary of State for Communities and Local Government, appeals against the order of Hickinbottom J., dated 13 April 2015, by which he allowed the application of the respondent, BDW Trading Ltd. (trading as David Wilson Homes (Central, Mercia and West Midlands)), challenging the decision of the Secretary of State’s inspector to dismiss its appeal against Stafford Borough Council’s refusal of planning permission for housing development – 114 dwellings – on land at Spode Close in Stone, Staffordshire. The site is about five hectares of farmland on the south-western edge of the town, with housing to its north and east, and is not allocated for development in the development plan. The inspector, Ms Victoria Lucas-Gosnold, held a hearing into BDW’s appeal on 23 September 2014. Her decision letter is dated 24 October 2014. BDW’s challenge was brought under section 288 of the Town and Country Planning Act 1990.

The judge accepted the contention in ground 1 of BDW’s application that the inspector had failed to ascertain, under section 38(6), whether or not the proposal was in accordance with the development plan. He also saw force in ground 4 of the application, which asserted that the inspector had erred in finding that BDW might not be able to create a suitable emergency access to the site. But he did not decide whether this, in itself, was a material error. Those two conclusions of the judge are in contest before us. His conclusion on the section 38(6) issue is the subject of grounds 1 to 5 in this appeal, his conclusion on the issue about emergency access the subject of ground 6, and also BDW’s respondent’s notice.

In its decision notice of 24 March 2014 the council gave a single reason for refusal:

“The amount of additional traffic generated by the proposed development, together with the constrained ability to disperse additional vehicles in the surrounding residential area would result in unacceptable levels of noise and disturbance that would have a significantly harmful effect on the living conditions of the neighbouring residents. This would be contrary to Saved Policies E&D1(iv), E&D5 and HOU1(iii) of the Stafford Borough Local Plan 2001, Spatial Principle 7(l) of the emerging Plan for Stafford Borough and Paragraph 17 of the National Planning Policy Framework [“the NPPF”].”

In its appeal against the council’s decision BDW agreed with the council a statement of common ground, the final version dated July 2014. In section 4, “Relevant Policies”, the statement of common ground referred to the requirement in section 38(6) of the 2004 Act for “planning decisions to be made in accordance with the Development Plan, unless material considerations indicate otherwise” (the first paragraph 4.1.1). It acknowledged that “The Plan for Stafford Borough Development Plan Document” had been adopted as the council’s local plan on 19 June 2014, replacing the saved policies of the 2001 local plan (paragraph 4.1.7). It listed a number of policies of the newly adopted local plan that were agreed by the parties to be “relevant to this appeal proposal”, including Spatial Principle 7 (the second paragraph 4.1.1). It recorded the fact that the Stone Area Inset Map showed the appeal site as “white land”, without notation or allocation (the second paragraph 4.1.2 and paragraph 5.4.1).

Spatial Principle 7, “Supporting the location of new development”, says that “Settlement Boundaries” will be established in accordance with the criteria it sets out, and that “[prior] to the establishment of the actual boundaries these principles will be used to assess the acceptability of individual proposals at the Settlements”. The relevant principle here is in criterion (l), which requires that development “will not adversely affect the residential amenity of the locality”. At the time of BDW’s appeal no settlement boundary had yet been defined for Stone under Spatial Principle 7.

Under the heading “The Principle of Residential Development”, paragraph 5.5.1 of the statement of common ground said this:

“The parties agree that the principle of residential development in this location is acceptable subject to the proposal satisfying other Development Plan policies.”

In section 6, “Areas of Disagreement”, the parties set out the two issues on which they were divided (paragraph 6.1.1). The first was this:

“Whether the additional traffic generated by the proposed development would result in unacceptable levels of noise and disturbance that would have a significantly harmful effect on the living conditions of neighbouring residents.”

The second issue was “[whether] the adverse impacts of granting permission would significantly and demonstrably outweigh the benefits when assessed against the policies in [the NPPF] taken as a whole”. As was agreed at the hearing before the inspector, that issue fell away, because the new local plan had by then been adopted and its relevant policies were not “out-of-date” for the purposes of the policy in paragraph 14 of the NPPF.

BDW’s full statement of case, prepared by Wardell Armstrong, referred to a number of policies in the 2014 local plan as being “relevant” to the proposal (paragraph 4.3.3.), including the “Spatial Vision” for Stone, several of the spatial principles, and “Policy Stone 1 – Stone Town”. It quoted the “strategy” for Stone in that policy, including, under the heading “Housing”, the “aim to [continue] to meet the housing requirements for Stone Town by providing a total of 1,000 new market and affordable homes …” (paragraph 4.3.10). It pointed out that the “strategy for Stone is based on delivering an increased mix of high quality residential developments supporting first class business development” (paragraph 4.4.4). It emphasized that the inspector’s report on the draft local plan had said that “the scale of proposed housing as put forward in the plan is not intended as a maximum figure” (paragraphs 4.4.7 and 4.4.11). It amplified this point (in paragraph 4.4.13):

“… One of the benefits of the appeal scheme is in its role in contributing to providing sustainable development in a town with a strong housing market. In addition, the scheme will provide affordable housing where a need has been identified. It is also noted that no policy in the newly adopted Local Plan indicates that additional housing growth in Stone town even above the level identified in the Plan for Stafford [Borough] would have any unaccepted [disbenefits]. To the contrary, housing growth of Stone town is a fundamental sustainable element of the spatial strategy of the adopted Local Plan.”

Although there was more than a five-year supply of housing land (5.09 years’ supply), the NPPF did not suggest that this should be seen as an upper limit for housing development in a local planning authority’s area (paragraph 4.4.15). The “Conclusion”, stated in a single paragraph (paragraph 5.6.3), was this:

“Overall the scheme will not detract from the amenity of the area. The scheme will not generate an unacceptable level of noise. The scheme will not result in undue delay on local roads within the area or restrict access to neighbouring properties. The proposal is consistent with the Plan for Stafford Borough Policy Spatial Principle 7(l) and Paragraph 17 of the NPPF.”

In section 4 of its full statement of casethe council set out its case in opposition to BDW’s appeal. It said that, subject to the completion of an appropriate section 106 agreement, it was “satisfied that the proposals broadly comply with the relevant Development Plan policies and the provisions of the NPPF with the exception of Spatial Principle 7(l) [of the 2014 local plan] and paragraph 17 of the NPPF” (paragraph 4.1). The relevant criterion of the acceptability of development in Spatial Principle 7 was criterion (l). Of the “core planning principles” in paragraph 17 of the NPPF the relevant one was the fourth, that development should “always seek to secure high quality design and a good standard of amenity for all existing and future occupants of land and buildings” (paragraph 4.5). The “essence” of the council’s case was “that the choice of vehicular access location will result in a significant loss of amenity to existing residential properties” (paragraph 4.6).

At the hearing before the inspector both parties presented further evidence on the issue identified in section 6 of the statement of common ground.

Dealing with “Procedural Matters” at the beginning of her decision letter the inspector referred to the adoption of the new local plan in June 2014 and acknowledged that she “must have regard to the up to date policy position” (paragraph 2). She then said this (in paragraph 3):

“Both parties have referred to several policies from the 2014 Local Plan and also a number of national guidance and statements including paragraphs from the National Planning Policy Framework (the ‘Framework’). I have referred only to those policies which I consider to be relevant to my decision.”

She described the “Main Issue” in the appeal in this way (in paragraph 7):

“The main issue is the effect of the development proposed on the living conditions of neighbouring residents with particular regard to noise and disturbance.”

In considering that issue the inspector concentrated on the likely effects of noise generated by vehicles travelling to and from the new housing along Spode Close, which is at present a cul-de-sac. She found that the development would bring about a “significant increase” in the number of vehicles on that street (paragraph 13). Residents “using their main living areas and bedrooms would … be likely to experience the noise associated with vehicles using the proposed access at close quarters”. This “would be materially different to the quiet and peaceful living environment which those residents on Spode Close in particular currently enjoy”. The development “would therefore have a significantly harmful [effect]” on their “living conditions” (paragraph 17). The inspector also found that “the use of the access proposed would … materially affect the amenity value of [the] play area” used by children “from the wider estate” (paragraph 18). Her conclusion on the “main issue” in the appeal, therefore, was this (in paragraph 19):

“Accordingly, I conclude that the proposal would be harmful to the living conditions of neighbouring residents with particular regard to noise and disturbance. The proposal would therefore conflict with spatial principle 7(l) of ‘The Plan for Stafford Borough’ (June 2014) which, among other things, states that development will, in principle, be acceptable because it will not adversely affect the residential amenity of the locality. The proposal would also conflict with one of the core planning principles of the Framework which states that planning should always seek to secure a good standard of amenity for all existing occupants of buildings. … .”

The inspector dealt with “Emergency Access” as one of the “Other Matters” she had to consider. She said (in paragraph 20):

“I note that there is some dispute as to whether a suitable emergency access for the appeal scheme could be created. An illustrative plan was submitted by the appellant at the appeal which did show that one could be created. However, this would involve building the emergency access on part of the public open space next to the existing play area. At the hearing, it was indicated to me that this area of land is owned by an independent estate management company and not the appellant. As such, it does not appear to be within the control of the appellant. I note that the provision of an emergency access was a requirement of the highway authority to be secured via a condition to ensure that safe and suitable access could be maintained for the proposed development in light of an emergency occurring. Therefore notwithstanding the concerns that the Council and third parties have expressed regarding this access, in light of this uncertainty, I am not convinced that a suitable emergency access would be capable of being implemented, were the appeal to succeed. This is a matter that adds to the harm that I have identified above.”

The remaining “Other Matters” included BDW’s unilateral undertaking under section 106 of the 1990 Act. This would ensure that 45 of the proposed dwellings – 40% of the total – would be provided as affordable housing, thus complying with Policy C2 of the local plan (paragraph 22). The inspector saw a weakness in the unilateral undertaking in that it would not prevent affordable dwellings being sold as “open market dwellings” if an affordable housing provider were not found within three months. But “in light of the harm” she had “identified above”, this had not been “a decisive factor” in her consideration of the appeal (paragraph 23). On “Housing land supply” she said (in paragraph 26) that BDW had drawn her attention to the local plan inspector’s report, in which it had been accepted that “the housing requirements for the area should not be treated as a maximum figure”. She continued:

“… Therefore, even if there is no identified shortfall of housing land supply in the area, this would not necessarily preclude development proposals for housing coming forward. Rather, it is a question of assessing the particular harm which may occur as a result of the specific proposal in question. … .”

Under the heading “Other considerations”, the inspector set out her conclusions on “a number of neutral matters, where a lack of harm does not weigh in favour of the proposal” (paragraph 27) – the fact that the site was a “greenfield” site (paragraph 27), her finding that the development “would have a neutral effect on the character and appearance of the area” (paragraph 28), the absence of harm to local residents’ “living conditions with regard to outlook, light and privacy” (paragraph 29), the retention of “existing hedgerows and mature trees” and the absence of harm to “protected wildlife” (paragraph 30), the availability of “suitable mitigation measures” to avoid harm to the Cannock Chase SAC(paragraph 31), the absence of unacceptable risk of flooding (paragraph 32), and the absence of harm to “agricultural productivity in the locality” (paragraph 33).

In her “Conclusion” the inspector referred again to “the benefits associated with the development proposed”, including “the provision of 114 additional dwellings, of which 40% would be affordable units, the provision of recreational open space (both on and off site), a [financial] contribution towards education provision and the implementation of a transport plan”. There were “also areas of agreement … between the parties, including that the principle of the development proposed would be acceptable and that the appeal site is within a sustainable location”. And there were “several neutral matters” (paragraph 34). Finally, she said this (in paragraph 35):

“Whilst I have had regard to the benefits of the scheme, I conclude that they do not demonstrably outweigh the harm that I have identified above. This is because this particular appeal proposal would result in a significant increase in vehicle movements that would substantially increase the levels of noise and disturbance significantly above that currently experienced by residents in Spode Close in particular and other surrounding roads, albeit to a lesser extent. This would be significantly harmful to the living conditions of those residents as a result. I have also found that the proposal would not provide a safe and suitable emergency access and this adds to my concerns.”

She therefore concluded that the appeal should be dismissed (paragraph 36).

Section 70(2) of the 1990 Act provides that, in dealing with an application for planning permission a local planning authority must have regard to the provisions of the development plan, so far as is material to the application, and to any other material considerations. Section 38(6) of the 2004 Act provides:

“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”

The section 38(6) duty is the essential component of the “plan-led” system of development control. It embodies a “presumption in favour of the development plan”, as Lord Hope of Craighead described it in his speech in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 W.L.R. 1447 (at p.1449H), and, as Lord Clyde said in the same case (at p.1458B), “a priority to be given to the development plan in the determination of planning matters”. The nature of the duty and the force of the presumption are already the subject of much authority, which need not be enlarged in this case.

Without seeking to be exhaustive, I think there are five things one can fairly say in the light of the authorities.

First, the section 38(6) duty is a duty to make a decision (or “determination”) by giving the development plan priority, but weighing all other material considerations in the balance to establish whether the decision should be made, as the statute presumes, in accordance with the plan (see Lord Clyde’s speech in City of Edinburgh Council, at p.1458D to p.1459A, and p.1459D-G). Secondly, therefore, the decision-maker must understand the relevant provisions of the plan, recognizing that they may sometimes pull in different directions (see Lord Clyde’s speech in City of Edinburgh Council, at p.1459D-F, the judgments of Lord Reed and Lord Hope in Tesco Stores Ltd. v Dundee City Council [2012] UKSC 13, respectively at paragraphs 19 and 34, and the judgment of Sullivan J., as he then was, in R. v Rochdale Metropolitan Borough Council, ex p. Milne [2001] J.P.L. 470, at paragraphs 48 to 50). Thirdly, section 38(6) does not prescribe the way in which the decision-maker is to go about discharging the duty. It does not specify, for all cases, a two-stage exercise, in which, first, the decision-maker decides “whether the development plan should or should not be accorded its statutory priority”, and secondly, “if he decides that it should not be given that priority it should be put aside and attention concentrated upon the material factors which remain for consideration” (see Lord Clyde’s speech in City of Edinburgh Council, at p.1459H to p.1460D). Fourthly, however, the duty can only be properly performed if the decision-maker, in the course of making the decision, establishes whether or not the proposal accords with the development plan as a whole (see the judgment of Richards L.J. in R. (on the application of Hampton Bishop Parish Council) v Herefordshire Council [2014] EWCA Civ 878, at paragraph 28, and the judgment of Patterson J. in Tiviot Way Investments Ltd. v Secretary of State for Communities and Local Government [2015] EWHC 2489 (Admin), at paragraphs 27 to 36). And fifthly, the duty under section 38(6) is not displaced or modified by government policy in the NPPF. Such policy does not have the force of statute. Nor does it have the same status in the statutory scheme as the development plan. Under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act, its relevance to a planning decision is as one of the other material considerations to be weighed in the balance (see the judgment of Richards L.J. in Hampton Bishop Parish Council, at paragraph 30).

The authorities contain several passages relevant to the issue here. The first is in Lord Clyde’s speech in City of Edinburgh Council (at p.1459H to p.1460C):

“… [In] my view it is undesirable to devise any universal prescription for the method to be adopted by the decision-maker, provided always of course that he does not act outwith his powers.Different cases will invite different methods in the detail of the approach to be taken and it should be left to the good sense of the decision-maker, acting within his powers, to decide how to go about the task before him in the particular circumstances of each case. … In many cases it would be perfectly proper for the decision-maker to assemble all the relevant material including the provisions of the development plan and proceed at once to the process of assessment, paying of course all due regard to the priority of the latter, but reaching his decision after a general study of all the material before him. The precise procedure followed by any decision-maker is so much a matter of personal preference or inclination in light of the nature and detail of the particular case that neither universal prescription nor even general guidance are useful or appropriate.”

On the same theme Richards L.J. said in his judgment in Hampton Bishop Parish Council (at paragraph 28):

“… It is up to the decision-maker how precisely to go about the task, but if he is to act within his powers and in particular to comply with the statutory duty to make the determination in accordance with the development plan unless material considerations indicate otherwise, he must as a general rule decide at some stage in the exercise whether the proposed development does or does not accord with the development plan. … .”

Richards L.J. added (in paragraph 33) that if the decision-maker does not do that he will not be in a position to give the development plan what Lord Clyde described in City of Edinburgh Council as its “statutory priority”. He went on (in the same paragraph) to recall Lord Reed’s observation in Tesco v Dundee City Council (at paragraph 22) that “it is necessary to understand the nature and extent of the departure from the plan … in order to consider on a proper basis whether such a departure is justified by other material considerations”.

The judge said he did not find the issue raised in this part of BDW’s challenge an easy one to resolve. He acknowledged that an inspector’s decision letter must be read “in a broad and sensible way …”. But he accepted the argument of Mr Hugh Richards for BDW that the inspector had at no stage decided whether or not the proposal was in accord with the development plan as a whole (paragraph 32 of the judgment). This was, he accepted, “a question of substance and not form”. An inspector did not have to resort to a “mantra” (paragraph 33 (iv)). In this case the inspector had referred to the development plan. But it was not possible to say that she had given the plan “the prominence that the scheme requires”, or to assume she had (paragraph 33(vi)). The judge continued (in the same paragraph):

“… She did not refer at all to section 38(6). This is not a case … where … the court is able to say, confidently, that the decision-maker had decided that the development was or was not in accordance with the development plan. The Inspector said that benefits did not outweigh the harm she had identified – which, on the face of it, is suggestive of a conclusion that the development was not in accordance with the plan – but, on the facts of this case (where the conflict Policy SP7(l) was the only conflict with the development plan alleged, and that conflict may be regarded as less fundamental than the primary conflict in [Hampton Bishop Parish Council] which concerned the policy for criteria for allowing development in the open countryside), I cannot confidently say that she brought her mind to bear on that issue and made an unexpressed finding to that effect. … .”

He said that this case “did not involve a particularly complex judgment as to whether the development did or did not accord with the plan”, but “the nature of the policy conflict here is very different from that in [Hampton Bishop Parish Council]”.

For the Secretary of State, Mr Richard Kimblin Q.C. submitted that the judge’s approach does not reflect the latitude for decision-makers in discharging the section 38(6) duty, which the court has consistently recognized. The argument put forward on behalf of BDW, and accepted by the judge, does not show that the inspector failed to do what section 38(6) requires. She did not have to spell out the conclusion she had reached on the proposal’s accord, or lack of accord, with the development plan. This was not a complicated decision. It involved a single issue identified by the parties themselves, to which a single policy of an up to date local plan applied. On a fair reading of the decision letter, against the background of the council’s refusal of planning permission, the statement of common ground and the parties’ evidence before her, it is clear that the inspector found the proposal did not accord with the development plan – because it offended Spatial Principle 7(l). She took care to balance against the harm the development would cause to “the living conditions” of local residents – in conflict with that policy – all the benefits it would bring, as BDW urged her to do. That was exactly what section 38(6) required in this particular case. There was no need for anything more.

Mr Richards supported the judge’s reasoning and conclusion. The inspector did not have to make an express finding on the proposal’s compliance, or lack of it, with the development plan. But her decision letter, read fairly as a whole, had to show that she had properly faced this question, and the conclusion to which she had come. It did not. She should have recognized, but seemingly did not, that the proposal found broad support in the local plan, as had been submitted on behalf of BDW in its “statement of case”. And she should have taken this into account in deciding whether the proposal was, or was not, in accordance with the development plan. She did not do that. The judge was therefore entitled to conclude that she had not discharged the duty under section 38(6).

I cannot accept Mr Richards’ argument. In my view Mr Kimblin’s submissions are essentially correct. I do not think the inspector failed to comply with the duty in section 38(6).

One must remember that the decision letter was intended to deal with the evidence and argument presented to the inspector, both in writing and orally at the hearing. The analysis it contains was, as one would expect, concerned with the matters in contention between the parties. As Lord Brown of Eaton-under-Heywood said in a well-known passage of his speech in South Bucks District Council v Porter (No.2) [2004] 1 W.L.R. 1953 (at paragraph 36) – in the context of a reasons challenge but I think with wider relevance than that – “[decision] letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced”.

As the judge accepted, this was not a complex case. In fact, it was quite simple. There was only one main issue, which the parties had agreed in the statement of common ground– conscious, as they clearly were, of the duty in section 38(6). As they had refined it, the issue waswhether the noise and disturbance resulting from additional traffic generated by the proposed development would be “unacceptable” because it would have a “significantly harmful effect on the living conditions of neighbouring residents”. This corresponded to the sole issue arising from the reason for refusal in the council’s decision notice. It was the issue implicit in the concluding paragraph of BDW’s full statement of case (paragraph 5.6.3). Not surprisingly therefore, it was identified by the inspector in her decision letter as the main issue in the appeal. As Mr Kimblin rightly observed, the issue was not framed in terms of a balance, or potential balance, between harm and benefit, or between the considerations which arose under Spatial Principle 7(l) and under other policies of the local plan.

In dealing with that single main issue, the inspector was, I think, entitled to proceed as she did. This, it seems to me, was one of those cases in which the decision-maker can quite properly take the approach indicated by Lord Clyde in the passage I have quoted from his speech in City of Edinburgh Council (at p.1459H to p.1460C). It was not a case in which the parties were at odds about the meaning oreffect of any relevant policy in the development plan, or in which it was suggested that relevant policies were in conflict or tension with each other. It was a casein which the outcome turned on the application of a single and simply expressed policy directly relevant to the critical issue. In its particular circumstancesit was, I believe, one of those cases in which a proposal can be in conflict with the development plan because it is contrary to a single policy of the plan, even though it does not offend other policies and may even find some general support in them.As Mr Richards rightly conceded, there are cases in which a proposal can fail to be in accordance with the development plan as a whole even if it conflicts with only one policy.

The parties had agreed, in paragraph 5.5.1 of the statement of common ground, that the principle of residential development on the site was acceptable “subject to the proposal satisfying other Development Plan policies”. By the time the appeal came before the inspector at the hearing, the only policy of the development plan relevant to the main issue in the case was Spatial Principle 7(l) of the 2014 local plan. This was not in dispute. The policies of the previous local plan referred to in the council’s decision notice were no longer extant. The local plan had very recently been adopted – only two months or so before the hearing – and was in all relevant respects up to date. The site was not allocated for housing development, or the subject of any other allocation or designation, in that freshly adopted local plan, and was not within a settlement boundary defined under Spatial Principle 7. So the development plan policy critical to the acceptability of the proposal was Spatial Principle 7(l). That policy contains a fundamental and familiar principle of development control, that development should not harm “residential amenity”.

It has not been submitted, nor could it be, that the inspector failed to understand Spatial Principle 7(l) correctly, or that she applied it unlawfully. Her relevant findings and conclusions are not said to be unreasonable, or otherwise unlawful. She found that the effects of the development on the living conditions of local residents would be “significantly harmful” (paragraphs 17 and 35 of the decision letter), and thus concluded that the proposal was in conflict with Spatial Principle 7(l) (paragraph 19). This was a wholly unimpeachable planning judgment.

On a fair reading of her decision letter, the inspector did not fail to give the development plan its statutory priority under section 38(6). She did not fail to face, and answer, the question of whether or not BDW’s proposal was in accordance with the plan. She did face that question, and her answer to it is not obscure. It is plain that in her view the proposal was not in accordance with the development plan because it was in conflict with Spatial Principle 7(l). The reality of this case is that she found the proposal did not satisfy the development plan policy of central relevance in the appeal, Spatial Principle 7(l), and there were no other provisions of the plan overriding that policy conflict. The proposal was therefore contrary to the development plan as a whole, and thus unacceptable unless justified by other material considerations. That, in my view, is how the inspector’s reasoning must be understood. Her approach was realistic, intelligible, faithful to the parties’ agreement in the statement of common ground, and, I believe, entirely lawful.

Mr Richards was not able to show that the inspector failed to take into account any other policy that could reasonably have led her to conclude that the proposal was in accordance with the development plan, notwithstanding its conflict with Spatial Principle 7(l). The broadly expressed policies of the local plan to which he drew our attention, which were referred to in BDW’s full statement of case, may be generally favourable to new housing being developed in Stone. But they do not displace or override the basic principle that any such development must comply with Spatial Principle 7(l), nor are they in tension or conflict with that policy. As I understand it, this was not the way in which BDW put its case before the inspector. And even if its case had been put in that way, the inspector was in my view entitled to apply Spatial Principle 7(l) exactly as she did.

In paragraph 3 of her decision letter the inspector acknowledged that the parties had referred to “several policies from the 2014 Local Plan …”, but said she was referring only to those policies she considered relevant to her decision. If that paragraph of the decision letter is taken at face value, there can be no doubt that she had well in mind all of the policies referred to by the parties in their evidence and in the statement of common ground, including the policies referred to in BDW’s full statement of case. In the event the only policies of the local plan that she mentioned specifically were Spatial Principle 7(l), which was the policy relevant to the main issue concerning the “living conditions of neighbouring residents”, and Policy C2, which was relevant when she was dealing with the proposed provision of affordable housing. One can sensibly assume that if she had seen any other particular policy as relevant to the main issue in the appeal, or to any other issue she had to resolve, she would have referred to it explicitly.

When dealing with “Other Matters” the inspector took into account all of the planning benefits relied upon by BDW, including, in particular, the benefit of providing homes to augment the planned five-year supply of housing land in the council’s area, and as much affordable housing as Policy C2 of the local plan required (paragraphs 22 and 26 of the decision letter). In doing so, she very obviously had in mind the assertion in BDW’s full statement of case that “no policy in the newly adopted Local Plan indicates that additional housing growth in Stone town even above the level identified in the Plan for Stafford [Borough] would have any accepted [disbenefits]”, and that “housing growth of Stone town is a fundamental sustainable element of the spatial strategy of the adopted Local Plan” (paragraph 4.4.13). It is clear, however, that she did not see these matters as negating the conflict she had found with the development plan because the proposal did not comply with Spatial Principle 7(l) (paragraphs 34 and 35 of the decision letter). In the circumstances I do not think there was any need for her to embark on a discussion of the various policies in the local plan which the proposal did not offend, or which were broadly supportive of the principle of housing development in Stone.

It cannot be suggested that the inspector failed to have regard to all “other material considerations”, in addition to the relevant provisions of the development plan, in considering whether the decision should be made otherwise than in accordance with the plan. She patently had regard to every consideration relevant to the proposed development, giving each consideration the weight she judged it should have. Having done that, she did not find the considerations weighing in favour of planning permission being granted sufficient to outbalance the conflict she had found with the plan because of the proposal’s failure to comply with Spatial Principle 7(l).

This was, in truth, a classic balancing exercise of the kind envisaged under section 38(6). And in my view the inspector undertook that balancing exercise appropriately and lawfully in the particular circumstances of the case before her.

I conclude, therefore, that on this issue the Secretary of State’s appeal should succeed.

The judge saw force in Mr Richards’ argument that the inspector failed to take into account the possibility of the proposed emergency access to the development being secured by a planning condition, and, therefore, that she ought not to have weighed against the proposal a failure to provide a satisfactory emergency access (paragraph 42 of the judgment). He agreed that “the matter could have been dealt with by way of condition(s)” (paragraph 46). However, he found it unnecessary to decide whether this was a “material” error, given his conclusion on the section 38(6) issue (paragraph 47).

Mr Kimblin submitted that, properly understood, paragraph 20 of the decision letter shows that the inspector found the proposed emergency access unacceptable because it would cross the “public open space next to the existing play area”, and not merely because it was, in her view, undeliverable. In considering the imposition of a Grampian – or negative – condition, the decision-maker has a wide discretion in deciding whether its requirements are reasonably likely to be fulfilled, and whether planning permission should be granted subject to it (see the speech of Lord Keith of Kinkel in British Railways Board v Secretary of State for the Environment [1993] 3 P.L.R. 125). Government policy on planning conditions includes, in paragraph 203 of the NPPF, the principle that decision-makers “should consider whether otherwise unacceptable development could be made acceptable through the use of conditions …”. In this case the inspector clearly did consider whether planning permission might be granted subject to a Grampian condition to secure the provision of the emergency access. She expressly referred to the highway authority’s request for such a condition. She was entitled to conclude that a suitable emergency access was unlikely to be provided, and to give this consideration the weight that she did. But in any event it did not go into the decisive balance between harm and benefit in paragraph 35 of the decision letter. The inspector would clearly have dismissed the appeal even if she had found that a suitable emergency access could be provided.

Mr Richards submitted that the judge’s conclusions on this issue were sound as far as they went. However, he said, the judge could and should have concluded that the inspector’s error on this discrete issue in the appeal was enough on its own to vitiate her decision. It is impossible to say that her conclusion that the proposal “would not provide a safe and suitable emergency access”, a distinct factor in the balance she struck in paragraph 35, was of no significance to her decision. At the very least it is not clear that she would have dismissed the appeal had she dealt with this issue lawfully (see the judgment of Purchas L.J. in Simplex G.E. (Holdings) v Secretary of State for the Environment (1989) 57 P. & C.R. 306 at p.327).

I cannot accept those submissions of Mr Richards.

There were, as Mr Kimblin submitted, two main considerations in the inspector’s conclusions in paragraph 20 of the decision letter. The first was that the proposed emergency access would cross “the public open space next to the existing play area”. The second was that the land in question was not owned by BDW, but by a third party, and was therefore not within BDW’s control. Thus, as well as the fact that the proposed emergency access would have to be provided at the expense of public open space, there was a significant doubt over its being implemented at all. There was no dispute that a suitable emergency access for the development was required, and that its provision would have to be secured if planning permission were to be granted. The suggested means of ensuring that an emergency access would be provided, which the highway authority had requested, was the imposition of a Grampian conditionto prevent the new dwellings being occupied until it was in place.

As is clear from the final sentence of paragraph 35 of the decision letter, the inspector firmly concluded that “the proposal would not provide a safe and suitable emergency access”. In coming to that conclusion, however, she did not ignore the suggestion that planning permission could be granted subject to an appropriate Grampian condition. She referred in paragraph 20 to the highway authority’s request for such a condition to be imposed if planning permission were granted. She found, in effect, that even if she did grant planning permission a “suitable emergency access” was not going to be provided. Quite apart from the concerns that the council and third parties had expressed about the emergency access proposed, she was not convinced that it “would be capable of being implemented, were the appeal to succeed”.

I see nothing in those conclusions to offend the principles expressed by Lord Keith of Kinkel in his speech in British Railways Board v Secretary of State for the Environment. Lord Keith said (at p.133) that there is “no absolute rule that the existence of difficulties, even if apparently insuperable, must necessarily lead to refusal of planning permission for a desirable development”. He went on to say (at p.134):

“… What is appropriate depends on the circumstances and is to be determined in the exercise of the discretion of the planning authority. But the mere fact that a desirable condition appears to have no reasonable prospects of fulfilment does not mean that planning permission must necessarily be refused. Something more is required before that could be the correct result.”

In this case the inspector had already found the development to be undesirable – as opposed to “desirable” – because of the harm it would cause to “the living conditions of neighbouring residents”, in conflict with the Spatial Principle 7(l) of the local plan. She had also noted that the proposed emergency access would take up public open space. She did not conclude, even hypothetically, that planning permission should “necessarily” be refused merely because the proposed emergency access was unlikely to be implemented. This was, however, a shortcoming of the proposal and added to the “harm” she had already identified. None of this betrays any error of law.

The final point concerns the balance struck by the inspector in paragraph 35. This, in my view, was clearly a balance between the “benefits of the scheme” and the “harm” to the “living conditions of local residents”. That is how the inspector explained “the harm … identified above” to which she referred in the first sentence of that paragraph. The explanation in the second and third sentences of the paragraph, introduced by the words “This is because …”, relates only to the harm the development would cause to the “living conditions” of local residents. The last sentence of the paragraph, which begins with the words “I have also found …”, refers to the failure of the proposal to “provide a safe and suitable emergency access” as adding to the inspector’s concerns. It echoes the last sentence of paragraph 20, and the last sentence of paragraph 23, where she also referred to “the harm … identified above”. That further consideration plainly added some weight to “the harm … identified above”, but only after the scales had been tipped decisively against the proposal by that other harm. This understanding of paragraph 35 is consistent with the earlier relevant passages of the decision letter, and with the letter read fairly as a whole.

It follows, in my view, that on a true reading of paragraph 35 the inspector’s decision would inevitably have been the same even if she had found that a suitable emergency access could be provided. But in any event, given the conclusion to which she had come on the main issue concerning the likely effect of the development on the “living conditions” of local residents, it is inconceivable that she might have allowed the appeal if she had been satisfied that a Grampian condition to secure the proposed emergency access could properly be imposed on a grant of planning permission for the proposed development. Therefore, even if – contrary to my conclusion – she was in any way legally at fault in the approach she took to the proposed emergency access, the court should exercise its discretion not to quash her decision.

I therefore conclude that on this issue too the appeal is well founded.

For the reasons I have given I would allow this appeal.

I agree.

I also agree.