Arrowcroft Group Plc v First Secretary of State

THE DEPUTY JUDGE: This is an application under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash a decision letter by the defendant dated 14 November 2002 in relation to a site at Waterside Park, Audenshaw, which lies in the administrative area of Tameside Borough Council ("Tameside"), which is the relevant local planning authority.

At the hearing of this application I had the benefit of submissions not only by Ms Patterson QC, who appeared for the claimant, and Ms Lieven, who appeared for the defendant, but also by Mr Owen, who appeared for Tameside in support of the claimant's submissions, and by Mr Findlay, who appeared for Fairfield Golf and Sailing Club, an interested party, in support of the defendant's submissions. I am indebted to them all.

At the beginning of the hearing I also had before me an application by Mr Owen on behalf of Tameside for permission to file evidence and to make representations at the hearing. That application was supported by a witness statement by Mr Alan Keith Davy dated 7 March 2003. It seems to me at first blush that there was no need for Tameside to make the application since it was served with the claim form as it had to be under Order 94 rule 2(2)(d), as preserved by schedule 1 to the Civil Procedure Rules. However, since the application was made for the avoidance of doubt and since there was no objection to it by the other parties I readily granted permission.

In September 1996 Tameside adopted its development plan, the Tameside Unitary Development Plan ("UDP"). The UDP, as one would expect, had been some years in its gestation and there had been a UDP Inquiry in 1994. The UDP included a site-specific policy DEN1 which related to Waterside Park. It would be appropriate for me to set out the terms of certain of the policies in the UDP at this stage. Policy DEN1, so far as material, reads as follows:

In 1998 an application was made by the claimant to Tameside for planning permission for development at Waterside Park. The application was for provision of a 25.5-hectare business park, 7 hectares of housing, a 45-hectare golf course, 12 hectares of open space, 7 hectares of private recreational area, a public house, a restaurant and retail and leisure services.

On 22 September 1998 the government office for the North West served a holding direction under Article 14 of the Town and Country Planning (General Development Procedure) Order 1995, instructing Tameside not to grant permission until the direction was removed, in order to allow the defendant to decide whether to call in the application.

On 30 September 1998 advice was given to the defendant by his officials that he should not call in the application.

However, on 2 February 1999 the defendant did call in the application by a direction made under section 77 of the 1990 Act. The reason for calling it in was "because of its possible implications for open space provision in Greater Manchester".

In the meantime, in January 1999, the application had been considered by Tameside, which had resolved to support the application.

On various dates between 6 July 1999 and 17 December 1999 a public inquiry was held into the application by an Inspector appointed by the defendant.

On 15 May 2000 the Inspector issued his report to the defendant. It extends to 126 pages excluding the lists of appearances and documents at the inquiry. The Inspector recommended that planning permission should be granted. Although because of its length it would not be appropriate for me to cite extensively from the Inspector's report I draw attention to it and in particular to section 9 in which were set out the Inspector's conclusions on relevant issues at the inquiry and his overall conclusions to the effect that permission should be granted.

However, on 30 November 2000 the defendant refused planning permission. That decision was the subject of proceedings in this court and by consent it was quashed by an order dated 1 November 2001 and sealed on 27 November 2001. It is not necessary for me to recite the reasons in the schedule to that order why the decision was quashed by consent, but I draw attention to them at Tab 11, page 210 of Volume 1 of the court bundle.

On 14 March 2002 the defendant sent a letter to the parties inviting representations on various matters. Paragraph 3 reads:

On 14 November 2002 the defendant again refused planning permission and it is that decision letter which is the subject of the proceedings before me. Because of its obvious importance to these proceedings I need to set out citations from it at some length. Paragraphs 6 to 13, so far as material, read as follows:

Although the grounds were slightly differently numbered in the claim form, having considered the parties' written and oral submissions, it seems to me that the following seven issues arise in this case: (1) Whether the defendant misdirected himself in law as to the meaning and effect of section 54A of the 1990 Act as amended; (2) Whether the defendant misdirected himself in law as to the meaning and effect of Policy EC6 in the then emerging Regional Policy Guidance Note 13("RPG 13"); (3) Whether the defendant complied with the duty to give adequate reasons for his decision; (4) Whether the defendant failed to take into account a material consideration; (5) Whether the defendant's decision was irrational; (6) Whether the defendant breached the rule against bias; (7) Whether the defendant otherwise breached the duty to act fairly.

Section 54A of the 1990 Act provides as follows:

In essence the argument on the first issue is encapsulated as follows in paragraph 10 of Ms Patterson's skeleton argument:

A number of authorities were shown to me in relation to this issue. The first to which I should refer is City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447, a decision of the House of Lords on section 18A of the Town and Country Planning (Scotland) Act 1972, as amended, a provision which is identical to section 54A of the 1990 Act. The leading speech was given by Lord Clyde, and the material passage from that speech reads as follows (at pages 1458-1460):

Ms Patterson emphasised the sentence in Lord Clyde's speech (at page 1459E) where he said that the decision-maker "will also have to consider whether the development proposed... does or does not accord with the development plan." She submitted that this supported her contentions on the first issue. However, the following points should be noted about Lord Clyde's speech. First, any one or more sentences cannot be taken in isolation but must be read in the context of the speech as a whole. Secondly, the speech of any judge, however eminent, is not to be treated as a statute. Thirdly, the tenor of the speech as a whole is, as Lord Clyde said at p 1459H that it is "undesirable to devise any universal prescription for the method to be adopted by the decision-maker..." This is also supported by the speech of Lord Hope in the passages which I have read, which I do not understand to be different in substance from the speech of Lord Clyde, with whom he expressly agreed.

The second authority to which I should refer is the decision of Sullivan J in R v Rochdale Metropolitan Council ex parte Milne (2001) 81 P&CR 365 at 375-376:

The final authority to which I will refer in this context is the decision of Forbes J in the well-known case of SeddonProperties Ltd v Secretary of State for the Environment (Note) (1978) 42 P&CR 26 at 28:

In my judgment the Secretary of State's decision does not on proper analysis disclose any misdirection of law as to the meaning and effect of section 54A of the 1990 Act. First, section 54A is expressly referred to and summarised in both paragraphs 6 and 18 of the decision letter.

Secondly, the Secretary of State was not required to follow any one universally prescribed method for carrying out his exercise, which was one of planning judgment (see City of Edinburgh, in particular the speech of Lord Clyde, from which I have already cited). In particular, he was not bound, in my view, to come to a conclusion whether the proposed development was in accordance with the plan as a whole. It is one thing to say that even if there is conflict with a single policy the development may still be in accordance with the plan read as a whole, as Milne and Camden decide. However, it does not follow from that that the decision-maker is always required to answer the question whether even if there is conflict with specific policies there is nevertheless accordance with the plan as a whole. To impose such a rigid approach is to fall into the same kind of error against which the House of Lords warned in City of Edinburgh and which was described by Ouseley J in Camden as a "legalistic straitjacket".

Thirdly, the Secretary of State was clearly aware of the general economic policies in the UDP. It hardly needed him to spell them out, although it is notable that he referred at paragraph 18 of his decision letter (in the passage which I have stressed above) to economic regeneration. In any event, as Ms Lieven submitted, the general policies encouraging economic regeneration were reflected in the site-specific policy DEN1. What is not under challenge in this case is the Secretary of State's view that there was less than full compliance with policy DEN1 and that there was conflict with policies L3 and L12.

Fourthly and finally, on a fair reading of his decision letter it is clear to me that what the Secretary of State was saying was that in his view there was general conformity with policy DEN1 but not with criterion (h) and that there was inconsistency with policies L3 and L12 in the UDP. He was also saying that there were other material considerations which indicated that planning permission should not be granted. Overall, therefore, he came to the conclusion as a matter of planning judgment that material considerations, including the UDP, indicated to him that planning permission should be refused. In my view his reasoning does not disclose any misdirection as to the meaning and effect of the role which section 54A should play in his reaching that conclusion.

Policy EC6 (Regional Inward Investment Sites) of what was at the material time the emerging RPG 13 read as follows:

The first complaint in this context which Ms Patterson made is set out as follows (in paragraph 16 of her skeleton argument). It reads as follows:

During the course of her reply Ms Patterson accepted that the correct approach which the court should adopt in this kind of context is not to substitute its own interpretation of a planning policy but to consider whether the interpretation which the decision-maker placed on it was reasonably open to him: see the decision of the Court of Appeal in R v Derbyshire County Council ex parte Woods [1997] JPL 998. In my judgment, applying that approach, the Secretary of State did not misdirect himself as to the meaning and effect of Policy EC6 in the emerging RPG 13. First, he correctly noted that the adopted RPG 13 had a "preference" for use of urban land. Secondly, he did not regard Policy DP1 in the emerging core development principles (to which policy EC expressly cross-referred) as imposing any strict requirement. Contrary to Ms Patterson's submission it is clear from the passage in the decision letter at paragraph 12 that he regarded it as imposing a preference. However he was entitled to take the view that the emerging policy was stronger than the adopted RPG 13 and was entitled to take the view that policy DP1 was one of the factors which not only should be taken into account, but "must" be applied, being one of the Core Development Principles which the policy EC6 expressly stated must be applied. Thirdly, it is clear that DP1 requires a sequential approach to be undertaken. Fourthly and finally, the fact that great emphasis was placed on this emerging policy and that allocations in the UDP might have to be reassessed in the light of that emerging policy, emerges clearly from the correspondence which took place between the Government Office for the North West and the North West Development Agency. It would not be appropriate in a judgment of this length to set out the correspondence in full, but I draw attention to that correspondence in September 2001 and following in which, as I read the letters in particular from Mr Keith Barnes on behalf of the Government Office for the North West, it is made clear that the Government Office did not regard the allocations in development plans as being fixed and that they would require possible revision in light of the emerging policy in the RPG.

This last point seems to me also to provide the answer to the second complaint made by Ms Patterson under this head, which is set out at paragraph 18 of her skeleton argument:

In light of the correspondence to which I have referred in September 2001 and following, it is clear that the Government Office did not in fact regard the inclusion of Waterside Park in that list as being conclusive. That is entirely consistent, in my judgment, with the way in which the Secretary of State approached the matter in his decision letter, in particular at the end of paragraph 12, where he said that "the site's inclusion in the NWDA's list of strategic sites should carry little weight". Read in context, in particular in the context of paragraph 12 as a whole, it seems to me eminently clear that the Secretary of State was saying that the mere fact of the inclusion in that list of strategic sites was not enough to carry the day in contrast with the weight which he in his judgment attached to emerging policy in RPG 13.

Accordingly I conclude that the claimant's argument under the second issue also fails.

Where the law imposes a duty to give reasons the test for what will constitute adequate reasons is well-established in public law generally and in planning law in particular. As I understood the arguments, the relevant principles were common ground between the parties.

In Save Britain's Heritage v No.1 Poultry Ltd [1991] 1 WLR 153, at 166-167 Lord Bridge of Harwich, giving the leading speech, said this:

I remind myself of what Forbes J said in the passage from Seddon Properties which I have cited above, in particular his reference to the fact that the parties are the recipients of the decision letter and they will be "well aware of all the issues involved and of the arguments deployed at the inquiry" with the consequence that "it is not necessary to rehearse every argument relating to each matter in every paragraph." I also remind myself that "brevity is an administrative virtue": see de Smith, Woolf and Jowell, Judicial Review of Administrative Action (1995, 5th Ed) page 467 paragraph 9-051. Short reasons are not to be criticised provided they are adequate in all the circumstances.

There were five complaints made by Ms Patterson in relation to the adequacy of the Secretary of State's reasons. The first complaint related to the regeneration point. This point relates to paragraph 13 of the decision letter which I have already cited. I agree with Ms Lieven's submissions on this point (paragraphs 13-14 of her skeleton argument), where she says:

One has to bear in mind that the Secretary of State was not being asked to write a research paper for future reference. He had to explain to the parties who are in an informed position why planning permission was being refused on this application and to do so in an adequate way. In my view he did so adequately in relation to the regeneration point.

The second complaint under this head relates to housing and PPG 3, and relates in particular to paragraph 10 of the decision letter. As Ms Lieven submitted, and having in mind the guidance given by Forbes J in Seddon Properties and Lord Bridge in the Save case, it is necessary to look at this issue in its proper context. The context included the request in March 2002 for further representations from the parties following the quashing by this court of the earlier decision letter. That request expressly referred to this issue. The context also includes the representations which in fact were made in response, it seems, to that request on behalf of Tameside.

I was also provided by Ms Lieven at the hearing with a copy of a letter by Sally Keeble MP, a relevant minister. I was told that the letter dates from May 2002 although that was not clear on the face of the document. It is addressed to a councillor at the North West Regional Assembly. On page 2 of that letter she says:

In my view the Secretary of State did provide adequate reasons which would have been understood by a reasonable person who was aware of relevant national policy, including the revised PPG3 in 2000, and the history of this case, as the parties were. In essence what should have been apparent on a fair reading of the decision letter read in its context was that the UDP was out of date; the housing allocations in it had been made before PPG3 was revised in 2000; that the revised PPG3 requires a sequential test to be adopted and that brownfield sites should be used before greenfield sites. It should further have been apparent that the 60% figure was a national average, which might well have to be exceeded in any particular region of the country. Further, the letter of 14 March 2002 (to which I have earlier referred) had invited the parties to make representations on this as one of the specific issues of interest to the Secretary of State. For good or ill Tameside did not put in detailed representations to show they had done the sort of detailed sequential approach envisaged by PPG3. Accordingly my view is that the Secretary of State's reasons on this point were adequate when read in the context which would have been known to the informed reader.

I turn more briefly (because they were dealt with briefly by Ms Patterson) to the three remaining complaints under the third issue. Her next complaint related to the question of density. In my view the Secretary of State's reasoning again was adequate on this point. As Ms Lieven said at paragraph 18 of her skeleton argument:

The next complaint under this head was in relation to the golf club. Again in my view the Secretary of State's decision letter provides adequate reasons on this point as Ms Lieven says at paragraph 20 of her skeleton argument:

I agree with that contention. It seems to me that it would be entirely inappropriate in a context such as planning where a number of material considerations have to be weighed in the balance and may well point in different directions to regard the exercise as if it were one in which precise weights could be given as if one were weighing up apples and oranges. Ms Patterson also complained in this context that having regard to Lord Bridge's speech in the Save case it was not clear to a developer how, if at all, they could amend the planning application for the future in the hope of permission being granted. As Ms Lieven submitted at the hearing, the sentence to which my attention was drawn in the speech of Lord Bridge cannot have the effect that a decision-maker is required in setting out his reasons to fetter himself as to how future applications would be decided even if one could predict all the circumstances which might then obtain. It is for this reason, therefore, that in my judgment the Secretary of State was not required in order to discharge his duty to give adequate reasons to say in precise terms whether by itself the provision in the planning application relating to the golf clubs would be enough to render the application unacceptable in planning terms. What he was required to do was to set out his reasoning in adequate terms. His reasoning, as is clear from a reading of the decision letter as a whole, was clearly based on his weighing a number of material considerations in the balance. In my judgment that was adequate to discharge his duty in relation to reasons.

Finally under this head Ms Patterson complained that it was not clear from the decision letter why the view which the Secretary of State had taken in relation to Waterside Park had been taken when compared with the view apparently taken in relation to a different site called Wavertree. I need not go into the details, but for present purposes I hope it will suffice if I refer to Volume 2 in the court bundle at page 366. As Ms Lieven submitted, Wavertree is a brownfield site, and moreover the Secretary of State does not say in his decision letter that the NWDA's list of strategic sites is irrelevant. What he did say in particular at the end of paragraph 12 was that that list "should carry little weight": I read that to mean in the context of the particular application that was before him, namely Waterside Park. It is not helpful, in my view, to refer to other sites because each site has to be considered on its own planning merits, in particular when, as Ms Lieven said, Wavertree was a brownfield site in contrast to the way in which the Secretary of State perceived the Waterside Park site. Accordingly, in my judgment, the claimant's contentions in relation to the adequacy of reasons also fail.

Ms Patterson submitted that the Secretary of State failed to have regard to a material consideration: see paragraphs 33 to 34 of her skeleton argument, which read:

In my judgment this argument cannot succeed in the light of my conclusions on the earlier issues. The Secretary of State did not fail to take into account a material decision. He was well aware of the economic context and the regeneration point in particular, but he came to a different overall conclusion as to the planning merits of this particular application from that of the Inspector. No one has suggested or could suggest that he was bound to follow the views of the Inspector. Nor was the Secretary of State required in law to explain how what Ms Patterson called the "important aim" of the UDP should be achieved in the abstract. As I have said he was not required to write a research paper for future reference. What any decision-maker has to decide when considering a planning application, as opposed to more strategic questions which may arise in the formulation of national, regional or local policy, is whether or not to grant planning permission for the particular development which is proposed in the application. That is what the Secretary of State did in this case and, in my view, he did so having had regard to all material considerations.

Although the irrationality argument was advanced in some detail in paragraphs 25 to 40 of her skeleton argument, Ms Patterson did not place much weight on this argument, as I understood her, in oral submissions before me. She fairly accepted that if she failed under the earlier issues she was most unlikely to succeed in showing that the Secretary of State's decision was irrational. She also fairly accepted, in accordance with well-established authority which it is unnecessary to cite, at paragraph 37 of her skeleton argument that "the weight to be attached to a material consideration is for the decision-maker".

In my judgment it is impossible to say that the Secretary of State's decision was irrational. It involved a classic exercise of planning judgment. Provided he directed himself correctly in law, as I have held that he did, and provided that he took into account all material considerations, as I have held that he did, what weight he chose to give those considerations was a matter for him. He was entitled to reach a different judgment as to where the balance lay from that of the Inspector and to conclude that in all the circumstances planning permission should be refused in the present case.

The test for apparent bias has recently been authoritatively set out by the House of Lords in Porter v Magill [2001] UKHL 67 [2002] 2 WLR 37, at paragraphs 102-103 where Lord Hope of Craighead said this:

Although Ms Patterson raised this argument in her skeleton argument at paragraphs 41-44, she did not pursue it with any vigour in her oral submissions and, in particular in her reply she fairly accepted that, if she failed on the earlier issues she would find it difficult to challenge the Secretary of State's decision on the ground of apparent bias. However, Mr Owen, on behalf of Tameside, did place greater emphasis on this ground. As I understood the argument reliance was placed on four facts to support the contention of apparent bias. First, the fact that the Secretary of State had called in the application against the advice of his officials; secondly, the fact that there had been, as was apparent from the inquiry before the Inspector, opposition to the application from local Labour MPs and Labour party members; thirdly, the fact that the Secretary of State departed from the Inspector's recommendation that permission should be granted and fourthly, the fact that certain letters requesting an assurance that the Secretary of State had not taken into account representations outside the inquiry process had been written to the Secretary of State on behalf of Tameside but had not received a substantive rely.

In relation to the first of those facts it would not, in my view, either by itself or taken with other facts, lead a fair-minded and informed observer to conclude that there was a real possibility of bias. Officials are there to give advice to ministers, but it is perfectly proper for ministers to take their own decisions. The fact that the original reason for calling the application in related to open space provision in Greater Manchester and not other matters does not alter the picture. No one has suggested that it was not open to the Secretary of State to call it in on that ground and I can see nothing improper about it.

In relation to the second factor relied on again it seems to me that this would not lead a fair-minded and informed observer to conclude that there was a real possibility of bias whether taken by itself or with other facts. It is often likely to be the case that local Members of Parliament and others will be members of the same political party as the minister responsible for a decision. That cannot be enough. It is a matter of common experience that members of the same political party may well disagree about a particular issue. It is also a matter of common experience that local MPs and other activists will, understandably, seek to protect what they regard as local interests perhaps in opposition to what the decision-maker at national level may think is the right thing to do. This will be so whether they happen to be of the same political party or of different parties: that is what we expect in a healthy democratic society. A fair-minded and informed observer is also to be taken as knowing the relevant facts, as Lord Hope's speech in Porter v Magill makes clear. Those facts include the following, which I was told by Ms Lieven on instructions from her clients: (1) The minister who took the decision had no connection with the area concerned. He was Tony McNulty, who is an MP for a constituency in London. This was in accordance with the normal policy as referred to in the speech of Lord Slynn of Hadley in R (Alconbury Developments Ltd) v Secretary ofState for the Environment, Transport and the Regions [2001] UKHL 23, [2001] 2 WLR 1389 at paragraph 46, which sets out the relevant safeguards which are in place as a matter of departmental policies:

In relation to the third factor relied on the fact that the Secretary of State departed from the Inspector's report seems to me to provide no evidence of apparent bias at all. He is entitled to do so provided he acts rationally and gives adequate reasons for doing so. I have already held that he did give adequate reasons and that his view cannot be regarded as irrational.

In relation to the fourth factor relied on I need to set out some of the factual history in greater detail. Mr Owen relied on a series of letters on behalf of Tameside which were exchanged with the Treasury Solicitor's department on behalf of the defendant. It is I hope unnecessary for me to cite those letters in detail, but they are there for reference for any who may need to see them. The point that was essentially made was, as I have said, that in some letters in around January 2001 and following, Tameside had written to the Treasury Solicitor's department asking for an assurance that no representations had been taken into account outside the inquiry process, but there was no substantive reply to that request. I was at first concerned about this point because in principle, at least, it is open to a court to draw an adverse inference against a party to correspondence which does not deny a point or otherwise give a substantive reply to a question when it has been raised with it, particularly when it has been raised on more than one occasion. However it is always a matter for the court to draw appropriate inferences by reference to all the circumstances in the case. In order to see whether there was anything in this point I asked for a witness statement to be provided to the court and very helpfully a witness statement was provided on the second day of the hearing by Mr John Howes of the Treasury Solicitor's department, which reads as follows:

Although I have framed this as a distinct issue, which it is for the purposes of analysis, on the facts of this case it must also fall away in the light of the evidence of Mr Howes (to which I have already referred under the sixth issue). It is clear on the facts that there was no breach of the duty to act fairly. This is because no representations raising anything material or new matters were taken into account outside the inquiry process which were not copied to the parties in accordance with the policy referred to by Lord Slynn in Alconbury.

For the reasons which I have given this application is refused.

MR LITTON: My Lord, I appear on behalf of the Secretary of State in place of Ms Lieven. In the light of the judgment I would ask for the claimant to pay the first defendant's costs.

MR CARTER: My Lord, I appear in place of my learned friend, Ms Patterson and Mr Crawford. I obviously cannot resist that application. In the absence of agreement about the quantum of costs I wonder if they could be subject to detailed assessment.

THE DEPUTY JUDGE: Yes. Before you sit down, Mr Carter, I do not know if you want to say anything to me in a moment rather than now about permission to appeal.

MR CARTER: My Lord, yes, I do have such instructions.

THE DEPUTY JUDGE: Do you want to make those submissions in a moment? Let us deal with other aspects first if we can. Is there anything anyone wants to say about costs about that matter?

MR CARTER: My Lord, no.

MISS HANIF: No.

THE DEPUTY JUDGE: Very well. The order will be that this application under section 288 is refused and the claimant shall pay the first defendant's costs to be the subject of detailed assessment if not agreed. Would you like to say anything about permission to appeal?

MR CARTER: My Lord, yes, very briefly if I may. I would ask for permission to appeal in relation to your Lordship's first issue; that is in relation to section 54A. I do so on the ground that there is a compelling reason why an appeal on that subject should be heard. My Lord, I would briefly confine myself to making these submissions. The cases that the court have en referred to and your Lordship has dealt with have not dealt with the situation where material considerations have been borne in mind by a decision-maker, which in part at least were material considerations which existed at the time of the formulation of the relevant development plan. My Lord, in part at least the defendant rested his decision upon a conflict with policies L3 and L12 as against a site-specific allocation for development. In my submission it would not be appropriate to use those sorts of issues as material considerations for the purposes of a decision otherwise than in accordance with the development plan because those considerations would have been weighed by the Inspector who reported them to the deposit proposals in the UDP as they then would have been. In my submission none of the cases that have been put before your Lordship deal with that particular issue and I would submit that that is a matter which is worthy of the attention of the Court of Appeal.

Perhaps to make one other small point, my Lord, your Lordship did interpose in your Lordship's reading of paragraph 48 of the Milne decision where there is reference to policies in plans pulling in different directions for employment purposes - which is in open countryside policies was the example given by Sullivan J - that that was a situation which in your Lordship's judgment was not dissimilar from the situation here. In my submission it is properly arguable that there is a distinction because whereas what it appears Sullivan J was talking about was policies that are generally about employment matters weighing against policies that are generally about preservation of the open countryside. In this case, my Lord, there was a site-specific policy in favour of development of the site as against more general policies which are anti the loss of recreation facilities, if I can put it that way, which, connected to my first point, were all considered by the UDP Inspector. I confine myself to those submissions.

THE DEPUTY JUDGE: Do you want to say anything?

MR LITTON: My Lord, just very briefly, of course the test for the grant of permission is set out in Part 52 and your Lordship would have to be satisfied that either there was a real prospect of success or there was some other compelling reason why the appeal should be heard. I do not believe it has been put on the basis that there is a real prospect of success. As I understand the submission it is a compelling reason, namely that previous authorities have dealt with the point that my learned friend has sought to identify. In my submission it is not a matter which provides any compelling reason, because the formulation in the authorities not least City of Edinburgh, is that one should not apply a formulaic approach to decisions which are essentially at heart matters of planning judgment provided you take into account relevant considerations, and plainly in the context of 54A development plan is a statutory material consideration which you need to take into account.

So my Lord, in my submission it is not a matter which provides a compelling reason why the appeal should be heard; I do not understand the matter is being put on the basis there is any reasonable prospect of success; so permission ought to be refused.

MR FINDLAY: Can I add to that that as I understood my learned friend for the claimant's formulation perhaps slightly different to that which is in fact argued by Ms Patterson before your Lordship; and secondly and in any event the Secretary of State's decision that policies L3 and L12 were not inconsistent with DEN1 which was in fact attacked before your Lordship, so on that factual basis, adding to the submissions of my learned friend for the Secretary of State I oppose the application.

MISS HANIF: My Lord, I appear in place of Mr Owen. I have little to add suffice to say in order to protect Tameside Borough Council's position I seek to be joined in the claimant's application for permission to appeal.

THE DEPUTY JUDGE: For permission to appeal.

MISS HANIF: Yes, my Lord.

THE DEPUTY JUDGE: Do you want to say anything in reply?

MR CARTER: My Lord, only very briefly, in response to my learned friend, Mr Findlay -- my Lord, I obviously was not here, I am not the advocate who appeared on the appeal, but the reference to the way in which the Inspector considered section 54A applied to him in relation to material considerations that were pre and post-adoption of the UDP and matters that were discussed before the UDP Inspector is certainly a matter that is referred to and set out by my learned friend, Ms Patterson, in the claim form, and it is touched upon in the skeleton argument. But I am obviously not in a position to say in what detail that was advanced before your Lordship.

THE DEPUTY JUDGE: I am going to refuse permission to appeal in this case. My reasons in brief are first, that it has not been suggested to me that there would be any real prospect of success even in relation to the first issue, which is the only issue on which, as I understand it, the application for permission to appeal is made at all; and secondly, it seems to me, having regard to all the circumstances of this case, that there are no other compelling reasons. I do not take myself to have been laying down any new law. I have sought I hope to apply legal principles which are well-established in much more authoritative courts than this one. Accordingly permission to appeal will be refused.

I am, however, sympathetic to this, if you want to apply for an extension of time, given that Easter is now nearly upon us. Normally as you know you would have 14 days from now if you wanted to pursue it any further. Do you want to say anything about that?

MR CARTER: My Lord, I was going to raise that matter, if I may. In so far as your Lordship's judgment is concerned obviously my learned friends Ms Patterson and Mr Crawford will wish to consider that, as your Lordship has observed Easter is soon to be upon us. Also I am informed that my learned friend, Ms Patterson, is detained and will be taking a week's holiday starting this weekend, and my learned friend, Mr Crawford, is to take a fortnight's holiday starting this weekend. In those circumstances I am instructed to ask whether your Lordship would be prepared to grant 28 days for the filing of an appellant's notice in the particular circumstances from today.

MR LITTON: I cannot resist that.

THE DEPUTY JUDGE: That seems to me to make eminent sense so I will direct that if the claimant, or indeed Tameside, are so minded and wish to pursue an application for permission to appeal to the Court of Appeal then they shall have 28 days from today in which to file an appellant's notice including the application for permission. Is there anything else?

MR CARTER: No thank you, my Lord.

THE DEPUTY JUDGE: I am grateful to you all.