JS Bloor (Sudbury) Ltd. v First Secretary of State

(As Approved by the Court)

Wednesday 16 July 2003

MR JUSTICE GIBBS:

Introduction

1. This claim is a statutory challenge pursuant to section 288 of the Town and Country Planning Act 1990 in relation to a decision given on appeal under section 78 of the 1990 Act by the first defendant's inspector on 20 February 2003. The claimant, JS Bloor (Sudbury) Limited, was the appellant in those proceedings. The second defendant was the local planning authority. The decision being appealed was the refusal of planning permission for a development of five dwelling-houses.

2. The appeal site was situated in a village known as Shimpling Street. It is an attractive Suffolk village situated to the west of the A134, almost equidistant between Bury St Edmunds to the north and Sudbury to the south. The appeal site is located close to the western end of the village and to the south of a road known as The Street which is the principal road passing through the rural community. The site is rectangular, virtually level and 0.5 hectares in area. At present it is overgrown with well-developed hedges on all four sides and has a small pond in the north eastern corner. In part the site adjoins residential properties, and in part it faces open countryside which falls away to the south west. There is a public sewer which crosses the southern part of the site, carrying with it a 6 metre wide easement zone over which no buildings can be located. Within Shimpling Street all land to the south of the road which I have mentioned, including the appeal site is classified as a special landscape area.

3. On 22 September 1997 outline planning permission was granted for the erection of five detached chalet bungalows on the site. On 4 September 2000 a reserved matters application was submitted for the erection of five detached two-storey dwellings with garages and the construction of a new vehicular access. This application was received within three years of the outline planning permission, but it proposed two-storey dwellings rather than the chalet bungalows which had been mentioned in the outline permission. The second defendants therefore took the view that, rather than being a reserved matters application, this new application should be treated as an application for full planing permission. The claimant accepted this and it was dealt with as such. Planning permission was refused, the decision being notified on the appeal on 12 December 2001. The issues arising in this previous appeal and the way in which they were determined form a central part of the present claim.

The application leading to the claim

4. The application was for outline planning permission for the erection of five detached dwellings and associated garages. Access from The Street would be at the north-western corner of the appeal site. The development would be grouped around a small cul-de-sac with only one garage located to the south of the sewer easement. The lay-out also indicated that the existing pond would be retained as an amenity feature. Save for the differences in the type of dwellings proposed, the application was broadly similar to previous application.

5. The present application was submitted on 19 December 2001, the week after the dismissal of the earlier appeal. It was refused on 1 March 2002. The appeal against refusal was heard on 11 February 2003. The refusal decision is dated 20 February 2003.

The earlier appeal

6. I now turn to the earlier appeal in order to set out the findings and approach of the first defendant's inspector. The first inspector was Mr Philip Goodman. In paragraph 2 of his decision he said as follows:

“In my view the 5 house types now proposed could not be termed 'chalet bungalows' and I also note that 5 double garages are proposed. Nevertheless, the Council accepts that by reason of the planning history, the principle of 5 dwellings on the site is established and not at issue. In the light of these circumstances, it seems to me that there would be no disadvantage to the appellant, or to any other interested party, in determining the appeal as if the application had sought full planning permission in the terms set out in the Council's decision notice as described in the above heading. Hence this is what I will do. For the sake of clarity I determine the appeal on the basis of the revised layout plan .... and associated revised plot house types as amended on 15 November 2000.”

He continued:

“Main Issues

3.The main issue is whether the proposed development would cause unacceptable harm to the character and appearance of the area by reason of the scale and form of the dwellings proposed.”

The inspector went on to deal with the planning policy background:

“Planning Policy

4. The development plan for the area now comprises the Suffolk Structure Plan 2001 adopted in June 2001 and the Babergh Local Plan (Alteration No 1) adopted in June 1995, although the previous version of the structure plan was operative at the time the application was determined by the Council....

5.Under policy LP5 the local plan classifies Shimpling Street as one of a number of villages wherein by reference to policy LP4 new housing development in the form of infilling or groups of up to 5 dwellings within the built-up area may be appropriate subject to the satisfaction of detailed criteria. The latter include consideration of the proposal's impact on the scale and character of the village, residential amenity, landscape (especially Areas of Outstanding Natural Beauty and Special Landscape Areas), and the environment, particularly conservation areas and listed buildings.

6.Policy LP17 sets out 4 circumstances in which infilling or groups of dwelling will be refused planning permission. Of these the Council's reason for refusal indicates that criteria (b) and (d) would not be satisfied by the current proposal. The former applies to proposals which in the opinion of the District Council would represent overdevelopment to the detriment of the environment, the character of the area, residential amenity or highway safety. The latter applies where the proposal would be of a scale, density or form which would be out of character with adjacent and nearby dwellings or other buildings....

7..... I note that the emerging review of the local plan has policies with broadly similar aims to those of the adopted plan but since this is currently at an early stage it does not carry the same weight as the adopted plan policies.”

Mr Goodman then went on to deal with his reasoning:

“9.Bearing in mind the outline planning permission and the illustrative layout which accompanied it, the concept of development of the site with five detached dwellings appears to me to be broadly acceptable, notwithstanding that it is a low density concept in comparison with current national guidance in Planning Policy Guidance 3 'Housing'. In my view the low density reflects the character of much of the nearby development. It is also in part a function of the need to retain the on-site pond, with its associated wildlife interest, and to allow an easement for the sewer which crosses the southern part of the site.”

The effect of the inspector's reasoning was that criteria (b) and in part (d) in Policy LP17 were found to be fulfilled. Paragraph 9, to which I shall return later, contains a significant part of Mr Goodman's reasoning. At paragraph 10 the inspector continued:

“.... While the design of the chalet bungalows may not have been particularly reflective of the area or its rural vernacular, their massing would generally have reflected the single and one and a half storey bulk of most of the houses at this slightly elevated end of the village.”

(This was a reference to the earlier outline planning application which had been submitted.)

“11.By contrast the proposed executive style houses, well designed as they are, would generally have eaves between 3.5 and 4m high and ridge heights of between 8 and 9m. As a result they would be noticeably larger in scale than all of the surrounding houses and most of the other houses along the road through the village.

12.Moreover, the site is open to the countryside to the south west and buildings of this scale would be clearly seen in views across the valley from the west as a substantial intensification of development at a prominent entry/exit point to the settlement. Viewed as a group they would appear as an overlarge and dominant feature at the edge of the special landscape area, in my opinion. While structural landscaping/tree planting might soften this to some extent, and should be possible on the southern boundary, it is not clear that there would be sufficient space along the western boundary to the side of The Rosary.

13.Accordingly, I conclude that the development would not accord with the aims of adopted development plan policies aiming to ensure that development respects the scale and nature of its surroundings and conserves and enhances the scale of the special landscape area.”

It follows from that reason that the other part of criterion (d) was not in the inspector's view fulfilled. The inspector continued that he had had regard to whether the proposal could be said to be overdevelopment in the normally accepted sense of the word. He concluded that the proposed houses would not cause an unacceptable impact on the privacy, outlook or other amenities of the nearest adjourning dwellings. As already mentioned, these findings were made in December 2001, not long before the refusal of the current application.

The Decision now under appeal

7. It is the decision of the inspector, Roger Brown, dated 20 February 2003, which is the present subject of statutory challenge. He identified the main issues as follows:

“2.These are firstly the impact of the proposed development on the character and appearance of the area. Secondly, whether the proposed density of development would be appropriate in the light of existing and emerging development plan policies, national guidance and other material considerations.”

Mr Brown then reviewed the planning background in a manner broadly similar to that of Mr Goodman. Towards the end of his review he said:

“6.Within the Babergh Local Plan Alteration No 2 First Deposit Draft (September 2001), a number of Policies have been carried over from the extant Local Plan with little, if any, alteration. Existing Policies LP4, LP17 and LP58 become Policies HS02, HS12 and EN04 respectively. Proposed Policy HS03 is similar to extant Policy LP5, the only change being additions to the list of villages but which still include Shimpling Street. Policy HS11 replaces extant Policy LP16 with regard to housing density, requiring that residential densities should be in the range of 30 to 50 dwellings per hectare. Proposed Policy CR05 expands upon guidance relating to Special Landscape Areas. Supplementary Planning Guidance attached to Alteration No 2 includes a revision to the boundary of the built up area of Shimpling Street (and which now omits the appeal site), together with a Housing Needs Survey.”

The inspector considered the weight to be attached to the emerging Local Plan. He said:

“8..... It is at a relatively early stage within the adoption process. Therefore, in accordance with guidance within PPG1, on the whole I will afford it little weight.”

However, he made an important proviso:

“9.However, emerging Policy HS11 accords with guidance within PPG3, which was published in March 2000 and post dates the extant Local Plan. PPG3 clearly establishes the Government's objectives with regard to making the best use of land. Whilst paragraph 56 acknowledges that new housing development of whatever scale should not be viewed in isolation, paragraph 58 states that local planning authorities should avoid developments which make inefficient use of land (those of less than 30 dwellings per hectare net). They should encourage housing development which makes more efficient use of land (between 30 and 50 dwellings per hectare).”

He went on to deal with the effect of PPG3:

“11.Paragraph 38 of PPG3 provides unequivocal advice in this respect. 'In considering planning applications for housing development in the interim, before development plans can be reviewed, local authorities should have regard to the policy contained in this PPG as material considerations which may supersede the policies in their plan'. This guidance is echoed in paragraph 54 of PPG1 which concludes by stating that 'Particular policies of the plan may, for example, have been superseded by more recent planning policy guidance issued by the Government'.

12.Because emerging Police HS11 reflects current Government advice, it effectively supersedes extant Local Plan Policy LP16, and is therefore of direct relevance to this appeal.”

The inspector went on to deal with what he had identified as the first issue:

“17.Shimpling Street is a village of essentially linear proportions with the majority of the properties being situated either side of The Street. A major exception is at the western end, where development (fronting Barnfield) extends further to the south. As described earlier, building curtilages virtually surround the appeal site. Consequently, the proposed development would fit easily within the general ambience of the area. Therefore, and notwithstanding the Special Landscape Area designation, in principle I do not consider that the development of the appal site would be harmful to the character and appearance of the area. As such, and subject to the satisfactory resolution of further details but again only in principle, the scheme before me would accord with the main thrust and/or relevant criteria of Structure Plan Policy ENV8, and extant Local Plan Policies LP2, LP4, LP5, LP17, LP58 and LP97.”

The inspector went on to consider the second issue, that of density:

“18.The appeal proposal would result in a development density of 9.1 dwellings per hectare. At the inquiry, I sought guidance pertaining to the possible constraints to development arising from both the public sewer easement and the existing pond. After careful consideration, I lean towards the Council's conclusions that the easement could pass through garden areas, and that the pond could form part of the overall open space/amenity area. Therefore, such features would not be unacceptably onerous or significantly influence a housing layout.

19.The requirements of PPG3 with regard to density are recorded above in paragraph 9, and do not need not be repeated. In the light of this clear policy statement, I am of the opinion that the proposed density of development would not be appropriate and would not accord with either existing or emerging development plan policies, or national guidance. As such, it would be at odds with the main thrust and/or relevant criteria of Structure Plan Policy CS3 emerging Local Plan Policy HS11, and advice within PPGs 1 and 3.”

(The reference to “Structure Plan Policy CS3” in that context is the subject of a challenge in this claim, to which I shall refer later.)

“20.PPG3 also provides guidance with regard to rural housing -- village expansion and infill. The appeal proposal would enlarge the population of the parish by some 5 or 6%. The appellant did not contest the Council's assertion that this would be a significant increase. Paragraph 70 of PPG3 advises that villages will only be suitable locations for accommodating significant additional housing where (first bullet point) it can be demonstrated that additional housing will support local services, such as schools or shops, which could become unviable without some modest growth.

21.This advice is echoed in Structure Plan Policy CS3....

22.Shimpling Street has only a public house and a village hall. There is no primary school or shop. Whilst reference was made to possible spare capacity at a school in a nearby village, I have no information before me to support such an assertion....”

(The words at paragraph 20 'the appellant did not contest the Council's assertion that this would be a significant increase” are also the subject of challenge, to which I shall refer later.) The inspector went on to deal with the lack of transport facilities and employment opportunities within the area. He continued:

“23.I therefore conclude that not only is the density of the appeal proposal at odds with Government advice and Structure Plan and emerging Local Plan Policies, but the principle of development in a relatively unstable location must be open to question. This is a matter which should be determined through the Local Plan process.”

The inspector went on to identify and discuss other material considerations:

“24.The appeal decision letter of October 2001 is clearly material to this decision, and the appellant contends that my colleague accepted the principle of 5 dwellings within the appeal site. Because this would have been similar to the present proposal, his acquiescence to development of such a low density is a material consideration which supports the scheme now before me.

25.However, the main issue identified was 'whether the proposed development would cause unacceptable harm to the character and appearance of the area by reason of the scale and form of the dwellings proposed.' The appeal proposal was clearly judged against these parameters. Consequently, I do not accept that my colleague's determination of this earlier appeal is a material consideration of such weight as to justify setting aside clear and ambiguous guidance regarding housing density. Indeed, the present appeal is 'free standing' and must be determined on its merits.”

The inspector went on to say that he was mindful of the statement made in 2001 by the then Planning Minister, Nick Raynsford. I need not deal with that statement because in my judgment it adds nothing to PPG3, to which it referred. The inspector went on to consider a housing needs survey and, whilst not attaching great weight to the matters emerging from that survey, he concluded that the proposed development would not assist in resolving the present housing shortfall of West Babergh. Finally, under “Other Material Considerations” he referred to previous applications submitted by the appellant in respect of the same site, two of which sought planning permission for 14 dwellings. He concluded:

“For the reasons detailed above, in principle I do not consider that the proposed development would be harmful to the character and appearance of the area. Nevertheless, the density of such a scheme would not accord with the relevant policies or national guidance, and in my view the overriding principle of the development of the appeal site needs to be reassessed. I have given careful consideration to all other matters raised, but nothing persuades me from my conclusions with regard to the main issues.”

8. I have cited extensively from Mr Brown's decision letter because Miss Davies on behalf of the first defendant, understandably, invited me to view the decision as a whole. She submitted, rightly, that the claim should not be decided on a textual analysis of any particular passage.

9. Before turning to the planning policy background and the law, it is necessary to refer to two uncontested features of the case which are of some importance. First, the decision, the appeal against which Mr Goodman heard, was a refusal of an application for full planning permission. The application had not been originally submitted as such. It had, as already mentioned, been submitted as a reserved matters application following the grant of outline planning permission in 1997. However, there can be no doubt that it was treated throughout at the second defendant's insistence as an application for full planning permission. In a letter dated 23 July 2001 from the second defendant to the Planning Inspectorate, which was produced to me in the course of he hearing by Mr Dove QC, the following paragraph appears:

“Under section F the reason for the appeal should be due to the refusal of a full planning application and not the refusal of details required by a previous outline planning application as stated by the applicant. The application was first submitted as reserved matters. However, this was changed with the applicant's agreement before determination as the application was substantially different to the previous outline permission.”

10. The second feature of the case is that the planning policy background was precisely the same in relation to both applications and appeals, ie that heard by Mr Goodman and that heard by Mr Brown. It follows that it would have been open to the second defendants to oppose the first application on the grounds, for example, that the density of the proposed development was inappropriate or that residential development of a site was inappropriate in principle. In fact, against precisely the same planning background as that which prevailed at the time of the second application, they had chosen not to do so.

The Planning Policy Background

11. I need not rehearse in full detail the Planning Policy background since it was summarised in the extract from Mr Goodman's decision. However, it includes the following excerpts from the adopted county structure and local plans. County Structure Plan CS3(e):

“Other towns and villages with potential for housing development [these include the village in question] primarily meeting the needs of their surrounding area will be identified in local plans. At these settlements, new housing may be located within or, where indicated in the local plan, adjoining the built-up area. Settlements identified for new housing under this policy should have all of the following.”

(Thereafter a number of local facilities are mentioned.)

“LP4 New housing development in Villages will normally take the form of infilling within the built-up area, although it is expected that small groups of up to 5 dwellings may also be appropriate within the built-up area providing that there is no significant adverse impact on:

(i)the scale and character of the Village;

(ii)residential amenity;

(iii)landscape, particularly Areas of Outstanding Natural Beauty and Special Landscape Areas;

(iv)the availability of services and facilities;

(v)highway safety;

(vi)the environment, particularly conservation areas and listed buildings;

(vii)an open space which is important to the village scene or an important recreational asset for the locality.”

By Policy LP5 Shimpling Street was included in LP4. LP16 reads:

“Housing densities need to vary according to location and site characteristics. In certain circumstances, particularly on small sites and in order to achieve an environmentally-acceptable scheme compatible with the location of the site, densities lower than the advisory standards in Structure Plan Policy H1 will be required.”

There was a note that H1 had been deleted from the Structure Plan. LP17 reads:

“Planning applications for infilling or groups of dwellings will be refused where:-

a)the site should remain undeveloped as an important feature in visual or environmental terms;

b)the proposal, in the opinion of the District Council, represents overdevelopment to the detriment of the environment, the character of the locality, residential amenity or highway safety;

c)the layout provides an unreasonable standard of privacy, garden size or public space;

d)the proposal is of a scale, density or form which would be out of keeping with adjacent and nearby dwelling or other buildings.”

12. At an early stage within the adoption process the Emerging Local Plan was initially placed on deposit in September 2001. HS11, which appears in the First Deposit Draft, reads:

“Planning permission for residential development will not be granted where the density is below 30 dwellings per hectare net. Residential densities should be in the range of 30 to 50 dwellings per hectare. To maximise residential densities at the upper end of this range, the District Council will accept lower car parking and open space standards on sites in towns where they are close to jobs and services, and where:

*the site is either well related to or offers the opportunity to invest in alternative modes of sustainable transport, including public transport and cycle provision; and

*compensatory off-site open space can either be provided, upgraded or enlarged where nearby open space already exists.

The District Council will seek a Planning Obligation for the compensatory off-site requirements.”

Paragraph 3.64 of the same Deposit Draft reads:

“The District Council endorses the aim of increasing housing densities. However, the environmental quality and character of the Babergh District is exceptional. This applies equally to both Towns and Villages and to the Countryside. Some housing sites, due to their sensitive location or to the proximity of very low density housing, will require to be developed at low densities and Policy HS14 will be relevant in this respect.”

I need not quote from Policy HS14 because its relevance, if any, does not extend to the present claim.

13. In connection with the question of densities in particular, I have already referred to the government guidance given in PPG3 published in March 2000 and its provisions in the citation from Mr Brown's decision letter, and in particular the guidance to local authorities that the policy in this PPG should be regarded by them as material considerations which might supersede the policies in their plan. In summary, it will be noted that the policies set out in PPG3 were less favourable towards low density housing than the adopted Local Plan polices. Local Planning authorities were directed to have regard to such policies, even where they superseded adopted plans. Paragraph 57 of PPG3 under the heading “Making the Best use of Land” gives the reasoning behind the change of policy. Paragraph 58 reads:

“Local planning authorities should therefore:

*avoid developments which make inefficient use of land (those of less than 30 dwellings per hectare net -- see definitions at Annex C);

*encourage housing development which makes more efficient use of land (between 30 and 50 dwellings per hectare net);....”

14. Finally, on planning policy considerations I must refer to the issue of prematurity which is dealt with in PPG1:

“47. Questions of prematurity may arise where a development plan is in preparation or under review, and proposals have been issued for consultation, but the plan has not yet been adopted or approved. In some circumstances it may be justifiable to refuse planning permission on the grounds of prematurity. This may be appropriate in respect of development proposals which are individually so substantial, or whose cumulative effect would be so significant, that to grant permission would prejudice the outcome of the plan process by predetermining decisions about the scale, location or phasing of new development which ought properly to be taken in the development plan context. A proposal for development which has an impact on only a small area would rarely come into this category, but a refusal might be justifiable where a proposal would have a significant impact on an important settlement or a substantial area with an identifiable character. Where there is a phasing policy in the development plan, it may be necessary to refuse planning permission on grounds of prematurity if the policy is to have effect.

48. Other than in the circumstances described above, refusal of planning permission on grounds of prematurity will not usually be justified. Planning applications should continue to be considered in the light of current policies. However, account can also be taken of policies in emerging development plans which are going through the statutory procedure towards adoption (or approval). The weight to be attached to such policies depends upon the stage of plan preparation or review, increasing as successive stages are reached.”

Examples are then given, one of which is:

“where a plan is at the consultation stage, with no early prospect of reaching deposit, then refusal on prematurity grounds would seldom be justified because of the lengthy delay which this would impose in determining the future use of the land in question.”

This is broadly the equivalent of the stage reached in the preset case.

The Relevant Law

15. Both parties rely on the decision in North Wiltshire District Council v Secretary of State for the Environment and Clover (CA) (1993) 65 P & CR 137, in which an inspector had been referred to an earlier, materially indistinguishable appeal decision and had entirely failed to deal with it in giving the reasons for his decision which was inconsistent with it. In his decision Mann LJ at page 145 referred to the statutory powers under which inspectors made appeal decisions. He continued:

“If an inspector fails to have regard to what in the circumstances of the case is a material consideration which has been 'placed before him' (and for the moment I adopt Mr Straker's phrase), then his determination is exposed to challenge on the ground that it is not within the powers of the Act. Where an inspector's reasons do not indicate whether he has had regard to a material consideration which was placed before him then there must usually be (in Lord Bridge's words) 'substantial doubts whether the decision taken was within the powers of the Act'. Accordingly the interests of an applicant will in that circumstance have been substantially prejudiced by the deficiency of reasons, for he is left in doubt as to empowerment and his ability to challenge on that ground.

In this case the asserted material consideration is a previous appeal decision. It was not disputed in argument that a previous appeal decision is capable of being a material consideration. The proposition is in my judgment indisputable. One important reason why previous decisions are capable of being material is that like cases should be decided in like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.

To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case? The areas for possible agreement or disagreement cannot be defined but they would include interpretation of policies, aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weigh the previous decision and give his reasons for departing from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate.”

16. A further decision on the topic was Brentwood Borough Council v Secretary for the Environment, Transport and the Regions and Hook[1999] JPL 528, in which an inspector made it clear that he had had regard to previous decisions. But on an application to quash under section 288 it was held that he had given no or no sufficient reasons for adopting a different approach. At page 533 Mr Christopher Lockhart-Mummery QC, sitting as a Deputy Judge, said:

“I am entirely satisfied that though the Inspector apparently had regard to these earlier decision letters, and that they were taken into account as the material considerations they plainly were, the Inspector equally plainly had a duty to state his reasons for taking such a radically different approach. The commonality of the issues raised by the two previous decision letters which I have particularly emphasised and the instant decision letter, I have described above and is obvious. Each related to very similar forms of development, that is to say extensions into and use of roof voids for living accommodation with no increase in ground cover or footprint. Each raised the same issues as to the application of policy in the Green Belt, that is to say PPG2, Structure Plan Policy S9 and policies GB2 and GB7 of the Local Plan. Each, therefore, was raising the same issue, ie the extension of residential accommodation into roof voids, exceeding the specific threshold in policy GB7, appropriate development in the Green Belt. This was, to borrow the phrase of Mann LJ in North Wiltshire, '.... the or one of the critical aspects in each decision letter'.”

The application to quash in that case was allowed. The passage cited was relied upon by counsel as analogous to the factual situation and the planning background of the present case.

17. I was also referred to London Borough of Bromley v Secretary of State for the Environment, Transport and the Regions and Tee[1999] JPL 536. In my view, no useful statement of principle is to be derived from that case.

The Submission on behalf of each party

18. Mr Dove on behalf of the claimant submitted that the first inspector's decision was clearly a critical material consideration in the determination of the second inspector. Mr Dove relied on important conclusions reached by the first inspector. These included that the principle of the development of the site for residential purposes was not an issue, was established, and was expressly accepted by the second defendants. It included a finding that, whilst the density of the scheme was below that currently contained in PPG3, “low density reflected the character of the nearby development” and was acceptable. This appeared in paragraph 9 of the first inspector's decision already quoted above. Mr Dove relied on the fact that the planning policy matrix, against which the second inspector's appeal had been conducted, was identical to that which pertained to the earlier inspector's decision. Mr Dove submitted that the conclusions reached by the second inspector were inconsistent with those reached by the first inspector and that the second inspector failed to give adequate or intelligible reasons for departing from the earlier decision. In particular, Mr Dove submitted that in paragraphs 24-27 of the second inspector's decision he confused the issues of the appropriate density of the development and the question of whether the development in principle was appropriate at all. Mr Dove submitted that the first inspector had provided his conclusions in paragraph 9 relating to density measured against the surrounding circumstances of the site, but that the second inspector had failed to address the question of the appropriateness of a lower density in the context of the site which was a matter specifically mentioned in the Development Plan Policies. Mr Dove submitted that it was especially important to provide reasons when the inspector was considering precisely the same issue against precisely the same background of planning policy. He submitted that in particular respects the second inspector failed properly to understand, apply, and give reasoned conclusions in respect of the material policies. He submitted that he failed to have any regard to policy LP16 and its supporting text which acknowledged the need to consider the circumstances of a site when addressing the question of density, and acknowledging that in some circumstances lower density schemes would be appropriate. Mr Dove criticised the inspector for concluding that Structure Plan Policy CS3 was related to density.

19. In connection with the inspector's finding that the development represented a significant increase, Mr Dove criticised the inspector for a factual error in suggesting that the council's assertion that this was a significant issue was not contested. In fact, said Mr Dove, the issue was contested by the appellant and the inspector misunderstood this. Mr Dove submitted that the inspector did not have regard to the fact that an increase of five dwellings was contemplated by all Development Plan Policies, which in itself suggested that an increase of that order was not to be regarded as significant.

20. An important aspect of Mr Dove's submissions was that one of the grounds for the inspector dismissing the application was that of prematurity. Mr Dove submitted that by paragraph 23 of his decision the inspector said that the principle of development was a matter which ought to be determined through the local plan process and that this was effectively a determination of the appeal on the grounds of prematurity. Mr Dove submitted that the inspector was wrong in law to approach the matter in that way. He failed to address the matters of guidance set out in paragraph 47 and following of PPG1. Had he done so, Mr Dove submitted, he would have been bound to find, in view of the small scale of the particular scheme and the early stage of the emerging planning policy, that a finding on the ground of prematurity was inappropriate. Further, he submitted that the question of prematurity was not raised as an issue before the inspector; thus there had been no evidence in relation to it. It was essentially unfair for the inspector to rely upon prematurity as a ground for refusing the application.

21. In response Miss Davies submitted that in this case, unlike the North Wiltshire case, the inspector referred to the previous inspector's decision as a material consideration. She submitted that, unlike the inspector in the Brentwood Borough Council case, Mr Brown gave adequate and detailed reasons. Miss Davies said that his reasoning was that the main issue in the earlier case had been to do with the scale and form of the proposed dwellings and therefore the weight to be given to his colleagues decision on the issues material to the present appeal was small; whereas there was now no doubt, because of the second defendant's change of stance, that density was a major issue before him. Miss Davies submits that, whilst in almost every respect the second inspector did reach different conclusions from the first, he was entitled to do so. Further, he gave sound reasons for his conclusions, which cannot be faulted on Planning Policy grounds. In particular he was entitled to accord considerable weight to emerging policy HS11 in the light of paragraph 38 of PPG3. He was entitled, therefore, to give less weight to LP16 since it was effectively superseded.

22. Miss Davies accepted that the inspector was in error in saying that policy CS3 was concerned with sustainability rather than density. However, he also referred to HS11, PPG1 and PPG3. It was plainly those policies he had in mind in making his findings on density rather than the erroneously mentioned CS3. Miss Davies submitted that the inspector did not fail properly to understand, apply or reason his conclusions in relation to the material policies. On the contrary, he provided cogent reasoning for his conclusions.

23. On the question of whether the development was or was accepted by the claimant to be a significant increase, Miss Davies submitted as follows. First, she said that, even assuming that the claimant's witness did dispute the council's assertion that an increase of 5 or 6% in the population of the parish was a significant increase, the inspector was entitled to find as a matter of judgment that the increase in population would be significant. Further, she said that there were reasons, which the inspector was entitled to find, why the village did not satisfy the criteria set out at paragraph (e) in Policy CS3. Finally, she submitted that the inspector was entitled to find that that policy and its application to the site called into question the principle of development in the location.

24. On the issue of prematurity, Miss Davies submitted that the inspector did not dismiss the appeal on the ground of prematurity. He dismissed it, she submitted, solely on the ground of conflict with Development Plan Policies and national Policy Guidance in relation to density and sustainability. Miss Davies accepted that there was some ambiguity in the inspector's language in his conclusions at paragraph 30, but she said that, despite that ambiguity, if the decision was viewed as a whole the conclusions should not be interpreted as including a finding of dismissal of the appeal on the ground of prematurity. In any case she said that effectively the inspector was contemplating two possibilities: either there should be no housing development at all on the site, or, if housing development was found to be acceptable in principle following consideration under the local planning process, it should be of higher density. She submitted that on neither basis would the proposed development, the subject of the appeal, be granted planning permission, and thus submitted that there was no basis for the present challenge, even if the structure of the inspector's reasoning gave some ground for criticism.

Findings

25. I am grateful to both counsel for their clear and forceful submissions. This is a claim which is not entirely easy to determine. It is conceded by Mr Dove that, but for the first inspector's decision, there could be no challenge to the second inspector's decision on density. This is a concession rightly made in view of the inspector's reasoning based on PPG3 and the provisions of the emerging policy HS11, even taking into account paragraph 3.64.

26. On the other hand, the question arises: Did Mr Brown pay any or any proper regard to Mr Goodman's earlier decision as a material consideration? If so, did he err in failing to attach any or any proper weight to it? It is important on this aspect of the claim to have regard to the context. The earlier application was a full planning application. It was the second defendants who insisted that it must be treated as such (see the letter dated 23 July 2001 already quoted). Thus the issues of whether development was correct in principle and whether, if so, the density of the proposed development was appropriate for points available to the second defendants on the first application. It is perhaps not material, and certainly not clear, precisely what prompted the second defendants to accept the principle of development and not to take any point on density. It must, however, be inferred that these were conscious and considered decisions. Furthermore, it would not be right to say that Mr Goodman regarded himself on these issues as faced with a fait accompli which he felt compelled to accept, even had it been proper for him to do so. Nor is it right to say that he overlooked the planning policy framework against which the appeal fell to be decided. Indeed, in paragraph 9 of his decision (already cited) he gave clear (though in the circumstances understandably brief) reasons why he found the development on the site with five detached dwellings was broadly acceptable in planning terms.

27. Thus the position is that Mr Brown, in considering his appeal decision just over a year later, was addressing precisely the same issues against precisely the same planning background, and was doing so in relation to what was for all purposes relevant to this appeal a similar application on the same site. Thus the decision to which he came was wholly inconsistent with the earlier decision both on the issue of density and on the issue of the principle of development.

28. The North Wiltshire case is authority for the proposition that an inspector may differ from a decision of his predecessor on a similar issue, provided that there are proper reasons given for departing from it. There is no rule that like cases must be decided alike. It is common ground that the doctrines of res judicata and issue estoppel do not apply in this jurisdiction. Nonetheless, the present case must be regarded as a highly unusual one for in the space of a few months the second defendants have performed a volte-face on crucial issues affecting the development of the site. The second inspector's decision has reflected that about-turn and thus effectively reversed key findings in the first inspector's decision. It was therefore incumbent on the second inspector to be especially clear in explaining not only the reasons for his own view but also why he was differing from the first inspector. As Miss Davies points out, the inspector referred to the earlier decision. Further, he gave proper reasons for the views which he himself had reached. What he did not specifically do was to give any substantial reason for his departure from the earlier decision. The second defendants in their written submissions to Mr Brown sought to justify their departure from their previous stance by reference to the supposedly changed planning considerations. In that respect they were in error. Mr Brown did not adopt their reasoning; but nor did he analyse the reasons given by Mr Goodman, the context in which those reasons were given, nor did he say why he rejected those reasons. In my view, it was insufficient for Mr Brown simply to refer to the fact that density was not the main issue before the previous inspector (paragraph 24). The only reason why it had not been the main issue was because the second defendants at that stage concurred with the claimants on the question of density. In my judgment, no or no sufficient ground was given for the departure. The claimant is entitled to consider itself unjustly and inconsistently dealt with.

29. However, the matter does not end there. Paragraph 23 together with paragraph 30 of the decision make it clear in my judgment that a separate ground for the inspector's decision, in addition to his finding on density, was his view on the principle of development. At the heart of paragraph 30 (his conclusions paragraph) he says:

“Nevertheless, the density of such a scheme would not accord with the relevant policies or national guidance and in my view the overriding principle of the development of the appeal sites needs to be re-assessed.”

The earlier paragraph (paragraph 23) in which he deals with this matter makes it clear that his view is that he thinks that this assessment should be via the local plan process. Thus the conclusion paragraph must be interpreted as including, in my judgment, a finding by Mr Brown that it was premature for him to decide the fundamental principle of whether the appeal site should be developed at all. In my judgment, the nature and scale of the appeal site was such that a finding on prematurity was simply not justified or supportable by the principles in relation to prematurity set out in PPG1, some of which I have already cited.

30. Miss Davies submitted that the inspector was not making a finding on prematurity. But, whilst conceding that his wording was ambiguous, she submitted that the inspector, having refused the application on the issue of density, was doing no more than suggesting a way forward via the planning process.

31. I do not accept that the inspector's words are properly so interpreted. However, the position would be unsatisfactory, even if his words are characterised as merely ambiguous and/or suggesting a way forward. I accept Mr Dove's submission that his remarks, even if merely ambiguous, are such as to prejudice the claimant. They are to be seen against the background of the earlier inspector's decision, which endorsed the principle of development on the site on the basis of identical planning considerations. Whether, as I find, the inspector dismissed the appeal in part on the ground of prematurity, or whether his remarks were simply ambiguous, it seems to me that the reasons for departing from the findings of Mr Goodman in this respect were plainly inadequate.

32. There are two additional but, in my view, less important criticisms of the inspector's decision to which I need to refer. First, Miss Davies concedes that the inspector was in error in saying or implying that Structure Plan Policy CS3 was relevant to density. It is now common ground that it was not. However, I accept Miss Davies' submissions that the other policies and advice cited in paragraph 19 of his report were relevant and capable of supporting the inspector's conclusions. In itself, therefore, the error would, I accept, not invalidate the decision.

33. Secondly, there is the averment that the claimant did not contest the second defendant's assertion that the 5 or 6% enlargement of the village population represented a significant increase. At this hearing it was not argued that the claimant did accept the assertion. In my view, this is a matter of at least some importance. There was and is a real argument on the basis of, for example, LP4 that developments of five houses or less may not necessarily constitute a significant increase. This was an argument which the claimant was entitled to have considered by the inspector, even though it must be conceded that he would have been entitled in any event to reject it. Again this second criticism is not, in my view, on its own one which would have been sufficient to justify quashing the decision. It is, however, to be added to the other substantial difficulties with the reasoning of the inspector which I have already mentioned.

34. Finally, I turn to Miss Davies' submission that even if the inspector's reasoning was deficient in all or some of the respects mentioned, the deficiencies would make no significant difference to the outcome. She submits that the claimant would be no worse off since it would have faced adverse findings on the issue of density, and would thus have been unsuccessful on appeal in any event.

35. In my judgment that outcome is by no means certain. The claimant has suffered substantial prejudice in that it cannot be confident that the outcome would have been the same if the inspector had properly analysed the previous inspector's findings and their content and/or if he had not erred on the question of prematurity. Under those circumstances I find that there has been substantial prejudice.

36. In the result I direct that the inspector's decision be quashed and that the matter be sent back for hearing before another inspector.

37. Miss Peter, you appear on behalf of the claimant today?

38. MISS PETER: My Lord, I do. There is an application for costs.

39. MR JUSTICE GIBBS: Yes. Those were agreed, were they not, subject to which way the case went? I am afraid I do not have a note of the amount, but I recall that the amount was agreed.

40. MISS PETER: My Lord, yes, it is, £8,802.20.

41. MR JUSTICE GIBBS: I make such an order.

42. MISS PETER: Thank you, my Lord.

43. MR JUSTICE GIBBS: Mr Palmer, I was prepared to be very indulgent to which ever side lost on the question if they wished to apply for permission to appeal. I believe that I extended the time for applying until 4 August. Do you have instructions on that?

44. MR PALMER: My Lord, 21 days, which may well be 4 August.

45. MR JUSTICE GIBBS: It may well be. I will say 21 days if there is any ambiguity about it. I am told that is 6 August. I am grateful to both of you attending. I do not think there is anything more at this point to be said, unless either of you has any point to raise? Thank you.