Fairfield Partnership v Huntingdonshire District Council & Ors

The claim before me raises the question of whether Huntingdonshire District Council circumscribed itself to an extent that was in error when it decided, in response to the claimant’s objection, to propose not to modify its Local Plan Alteration so as to delete a particular allocation of land to housing. The Council instead chose the course which an Inspector had earlier recommended, that the land should be so allocated.

The claim is brought by the Fairfield Partnership. I shall revert later to questions as to whether the Partnership is indeed entitled to bring the claim; for the moment I shall assume that it is.

On the 14^th November 2002 a special meeting of the Huntingdonshire District Council (“the Council”) resolved, inter alia, that no further modification should be proposed to the Huntingdonshire Local Plan Alteration in the light of responses received and that the Council should proceed to publish a notice announcing its intention to adopt the proposals contained in that Alteration. The resolution to that effect was carried “nem. con”. On the 18^th December 2002 the Council formally adopted the Alteration. Amongst the “responses received” in the light of which, as the Council resolved, no further modification should be proposed, was a representation on behalf of the Fairfield Partnership (“Fairfield”) which included objections to a number of proposed modifications. The most material of those objections for immediate purposes is the objection to Proposed Modification PM 34 (a) whereby it was proposed to allocate some 49.88 hectares of land at Ermine Street, Huntingdon for housing development. The Ermine Street site (“Ermine Street”) is a site which could accommodate some 675 dwellings in the period to which the Alteration was addressed. Fairfield had and has no interest in Ermine Street but it claims to have an interest in a site to the south and east of Cardinal Distribution Park at Godmanchester, a site able to support development of some 650 dwellings (“Cardinal Park”). Ermine Street is owned by Persimmon Homes (East Midlands) Limited (which I will call “the Interested Party”).

The relevant modification to the Alteration proposed by Fairfield was two-fold; firstly, that Proposed Modification PM 34 (a) allocating Ermine Street for housing should be deleted, thereby denying allocation to Ermine Street for housing development, and, in its place, secondly, that a new allocation for such development should be made, namely of Cardinal Park. Indeed, such is the scarcity of potential housing land and such is the need for homes that even success only on the first limb of its objection – thereby knocking out Ermine Street – would increase the likelihood of Cardinal Park sooner or later obtaining permission for housing development. However the Council, by resolving, as it did, that there should be no further modifications, did not accept the objection to Proposed Modification PM 34 (a), amongst many others also not accepted.

Fairfield took the view that in doing so the Council’s consideration on the 14^th November 2002 had been on a wrong basis in law, that had only matters been considered on a correct basis Fairfield’s objection would have had a real prospect of being adopted, that it was entitled to have its proposal considered on a correct basis of law and that, accordingly, some or all of the Alteration, having been considered on the incorrect basis of law, should be quashed. In particular, Fairfield took the view that the Council had mistakenly and far too blandly and unquestioningly elected to follow the recommendations of the Inspector, Miss R.M. Whittaker, who had conducted a Public Local Inquiry as to the Huntingdonshire Local Plan Alteration between the 7^th March 2000 and the 4^th May 2001. She had recommended, despite the Council’s then objections, that Ermine Street should be allocated for housing development. The Council, urges Fairfield, misdirected itself in law as to what was required of it before it could choose not to follow the Inspector’s recommendation and could thus be safe to revert to its own earlier opposition to the allocation of Ermine Street.

If there was error of law at all, it is, as I have understood it, common ground that one material error suffices to entitle Fairfield to relief; I will thus look at objection PM 34 (a) – the modification allocating Ermine Street for housing development – without going on to look at the Council’s failure to allocate Cardinal Park as Fairfield’s argument has concentrated on Ermine Street and I have not understood its argument to include that even if the Council did not err as to Ermine Street it nonetheless erred as to Cardinal Park.

In order to pursue its arguments, on the 22^nd January 2003 Fairfield began proceedings against the Council under section 287 of the Town and Country Planning Act 1990. On the 25^th February 2003 the Court, by consent, gave permission to the Interested Party to file evidence and to make representations as, in each case, it has done. The section 287 proceedings are now before me and I have had argument from Mr Katkowski Q.C. and Mr Kolinsky for Fairfield, Mr R. Purchas Q.C. and Miss J. Clayton for the Council and from Mr A. Kelly Q.C. and Mr G. Jones for the Interested Party.

The section which Fairfield invokes, section 287, provides, as amended and so far as material, as follows, in subsections (1) and (2):-

“287.

(1) If any person aggrieved by a unitary development plan or a local plan [minerals local plan or waste local plan] or by any alteration. or replacement of any such plan or structure plan, desires to question the validity of the plan or, as the case may be, the alteration …. or replacement on the ground –

(a)

that it is not within the powers conferred by Part II, or

(b)

that any requirement of that Part or of any regulations made under it has not been complied with in relation to the approval or adoption of the plan or, as the case may be, its alteration, repeal or replacement,

he may make an application to the High Court under this section.

(2)

On any application under this section the High Court –

(a)

……;

(b)

if satisfied that the plan or, as the case may be, the alteration, … or replacement is wholly or to any extent outside the powers conferred by Part II, or that the interests of the applicant have been substantially prejudiced by the failure to comply with any requirement of that Part or of any regulations made under it, may wholly or in part quash the plan or, as the case may be, the alteration …. or replacement either generally or in so far as it affects any property of the applicant.”

Mr Katkowski’s argument proceeds on the basis, from which Mr Purchas and Mr Kelly do not dissent, that if the Council’s consideration of the Proposed Modification PM 34 (a) was indeed in error of law, then a case would have been made out under section 287(1) (a) such that a discretion would arise under the first part of section 287 (2) (b).

The argument falls, as I see it, into four parts, giving rise to the following questions:-

I will later deal with these questions in turn but first will give the planning background to those questions.

In 1995 the Huntingdonshire Local Plan was adopted. As early as 1997 preparation for Local Plan Alteration began. By May 1999 proposed changes to the Deposit Plan were published. On the 4^th January 2000 the Town and Country Planning (Development Plan) (England) Regulations 1999 were brought into force. I shall refer to some relevant provisions from those Regulations later. In March 2000 a Local Plan Inquiry started. It ended, as I earlier mentioned, in May 2001. Unfortunately the Inspector fell ill and it was only on the 27^th February 2002 that the Inspector’s Report was received by the Council. On the 18^th March 2002 the Inspector’s Report was published by the Council. The Inspector took the view that additional allocations were required to be included in the Alteration so as to provide allocation in respect of some 1479 dwellings over and above such proposed allocations made by the Council which she had endorsed. She examined Cardinal Park and recommended, as a first stage in her selection of sites, that it should go forward as a possible site for allocation to meet the housing land supply shortfall. She examined Ermine Street. The Council had argued that Ermine Street lay in open unrelieved landscape and that it should not be allocated for housing. The Inspector disagreed and recommended that Ermine Street, too, should, at the first stage, go forward for further consideration for possible allocation. When she totalled up all the sites which in her view were appropriate for possible allocation, including Ermine Street expected to yield 675 dwellings and Cardinal Park 650, she found that if all were allocated some 800 more dwellings than were needed would be provided for. Some whittling down was therefore desirable or necessary and, given the sustainability of other possible sites, the Inspector concluded that in the absence of compelling need, as was the case, Cardinal Park should not be allocated. She did, though, recommend the allocation of Ermine Street for housing; she recognised that, whilst Huntingdon had experienced substantial growth in the then recent years, it did have a pre-eminent position in the district and that under the settlement strategy of the Alteration it was logical and sustainable for it to continue to absorb further growth through to 2006.

To continue with the planning history, on the 12^th June 2002 the full Council considered the Inspector’s Report and did so in the light of a very comprehensive report by its Head of Planning Services setting out its officers’ suggestions as to the proposed response of the Council to the Inspector’s Report. That Report by the officers included:-

“The Council is required to consider its response to each of the Inspector’s recommendations, and then to publish this response (along with any modifications to the original Deposit Draft of the Alteration that are necessary as a result of those recommendations that it chooses to accept). The Inspector’s Report is not binding upon the Council but case law has established that an authority must have adequate reasons for rejecting an Inspector’s views. In practice this means that authorities should accept an Inspector’s findings unless there are very good reasons to reject them. To do otherwise risks legal challenges to the plan and further delays in getting the new policies adopted.”

The officers’ particular suggestions were set out in tabular form and the officers indicated:-

“The final column sets out the reasons for accepting/rejecting each recommendation; where the proposal is to accept, this column merely cross-refers to the relevant reasoning contained in the Inspector’s Report. Detailed reasons are, however, set out where it is proposed not to accept her recommendation, in view of the legal requirement that the Council give adequate reasons for such action.”

That was a reference, in effect, to Regulation 27 of the 1999 Regulations which reads as follows:-

“27.

(1) Where a Local Planning Authority cause a Local Inquiry or other hearing to be held for a purpose mentioned in Regulation 26 (1), the Authority shall, after considering the report of the person holding the inquiry or other hearing, prepare a statement of –

(a)

the decisions they have reached in the light of the report and any recommendations contained in the report; and

(b)

the reasons for any of those decisions which do not follow a recommendation contained in the report.”

The officers drew attention to the 11 sites, including Ermine Street, in respect of which the Inspector had recommended allocation for housing in order to meet the identified shortfall. The officers added:-

“Because additional housing sites need to be found, it is considered that most of these sites [the 11] will need to be allocated even though none of them were put forward by the Council (and indeed most were opposed at the Inquiry). The Council could in principle reject some or all of these sites in favour of other proposals put forward by objectors, but those sites had also been opposed by the Council, and all had been rejected by the Inspector following a careful consideration of their respective merits …..Based upon that assessment it is considered that any additional allocations should come from [the 11 sites which the Inspector had recommended for allocation].”

Cardinal Park, of course, was not within the 11; Ermine Street was.

If all 11 of the proposed sites received allocation then, in the view of the officers, there would be a surplus of 170 dwellings over and above the Structure Plan requirement and the officers recommended the deletion from the 11 of 3 sites. 2 of the 3 already had planning permission and the officers thus took the view that their non-allocation would have no practical effect; they were going to be developed anyway. They amounted to land for some 108 dwellings. There was thus still room for a further whittling down if there was not to be a surplus. The officers took the view that, with two exceptions, the Inspector’s reasons for allocation in the 11 cases were appropriate. They said:-

“On balance (and in the specific context of the need for additional sites to be allocated) it is considered that the Inspector has identified and weighed the relevant material considerations in an appropriate manner, with two exceptions.”

Thus, in terms of the officers’ recommendations as to what the Council could properly propose, the officers were recommending adoption of the Inspector’s view as to 9 of the 11 sites, amongst which 9 Ermine Street was to be found. It is thus plain that the officers’ advice to the Council had made clear that, in respect of sites put forward by objectors, the Council was in principle able not to accept the recommendations of the Inspector. Equally, in respect of sites put forward by the Council itself, the officers’ report recognises that there was a freedom in an appropriate case to depart from the Inspector’s recommendations. For example, in 3 sites which may conveniently be called “village sites”, where the Inspector had recommended deletion of the sites, thus denying them allocation, the officers suggested that the Council’s response should be not to accept such recommendation. Again, in respect of another class of site, land adjacent to Cambridgeshire Constabulary HQ, the officers proposed to the Council that the Council should not accept the Inspector’s recommendation, giving, in its tabular assessment, a number of reasons for their views. The same may be said of the officers’ views that a site at Bedfordia Fields, St Neots should not receive allocation for housing development notwithstanding that that had been the Inspector’s recommendation. Again, reasons were given in the tabular suggestions of the officers given to the Council.

The officers’ report was considered at a special meeting of the Council on 12^th June 2002 and the Council formally resolved that the tabular schedule of decisions and reasons which the officers’ report had included should be indorsed as the Council’s proposed response to the Inspector’s report. The schedule was then published. Thus there emerged a Local Plan Alteration incorporating proposed modifications. The schedule of decisions and reasons (incorporating proposed modifications) had included mention of the Inspector having recommended that some changes should be made to the Deposit Draft. The schedule had continued:-

“These recommendations are not binding upon the Council, but case law has established that an authority must have adequate reasons for rejecting an Inspector’s views.” …….. “In most cases the Council is suggesting that it will have to accept the Inspector’s recommendations.” ………. “In a few cases the Council considers that adequate reasons exist for it not to accept the Inspector’s recommendations.”

In August 2002 Fairfield, by its agents, Messrs January, lodged its Representations, including objection PM 34 (a) which I have summarised above. Fairfield’s objection included a quotation from the evidence which the Council’s own witness to the earlier Inquiry had given in relation to Ermine Street; the witness had said:-

“In summary the objectors’ proposal [housing development at Ermine Street] would be an isolated island of residential development, visually and functionally cut-off from the rest of Huntingdon, very poorly related to the existing form and structure of the town. The implications of isolation are made worse by the fact that the development area indicated would be unlikely to be sufficiently large to support a primary school or other community facilities such as retail outlets.”

Fairfield now espoused that view, earlier taken by the Council itself, in support of its objection that Ermine Street should not be given the allocation which the Inspector had recommended for it.

On the 24^th October 2002 the Council’s officers reported to a Cabinet of the Council on the subject of a proposed response to the very many proposed modifications the Council had received. On the issue of whether modifications to the Alteration should be proposed the officers reported:-

“…. it should be reiterated that the Council must have “adequate” grounds” for rejecting any of the Inspectors’ recommendations. This is a legal test which, in effect, means that authorities should accept an Inspector’s findings unless there are very good reasons to reject them. If recommendations are rejected without adequate reasons the Council would be open to legal challenges and a possibility that parts of the plan will be quashed by the Courts. Even if the public consultation reveals local opposition to particular recommendations that the Council has proposed to accept, that in itself would not be an adequate basis for now rejecting the recommendations concerned. Adequate reasons need to reflect substantive and relevant issues that justify going against what the Inspector has said.”

So far as concerns Ermine Street the Council had received 7 responses supporting its allocation to housing and 46 objecting to it. Again the officers used a tabular form to indicate their proposals to the Cabinet, and, summarising those proposals, the officers said:-

“Members will see from Annexe 2 that none of the objections are considered sufficient to justify further proposed modifications to the Alteration. In other words no arguments have been made that merit any changes to the proposed modifications that the Council approved on the 12^th June and none of the responses justify accepting recommendations made by the Inspector which the Council was proposing not to accept.”

The officers proposed that the Cabinet should recommend to the Council that the response to the consultation exercise had not raised issues that were such as to justify further public local inquiry and that no further modifications needed to be proposed to the Huntingdonshire Local Plan Alteration in the light of the responses received.

As to Ermine Street, Annexe 1 of the officers’ report to the Cabinet said:-

“The proposed allocation at Ermine Street prompted both objections and expressions of support (although the latter are in the minority). Many of the objections relate to fears about traffic congestion; indeed, 35 of the objections were from residents of Upton concerned about the effect upon Ermine Street. The effect specifically upon the Spittals Interchange has also been raised, along with the site’s separation from the rest of the town. These concerns raise valid points – indeed they were argued by the Council at the inquiry – but the issues were considered at length by the Inspector and no additional evidence has come forward that is sufficient to reject her recommendations. The same is true of visual impact, which is also raised by objectors.”

The officers’ table records “the Fairfield Partnership (agent: Januarys Chartered Surveyors)” as amongst the many objectors to the proposed modification that Ermine Street should receive allocation for housing.

The table showed Fairfield’s objection that Cardinal Park at Godmanchester was every bit as sustainable for housing development as Ermine Street as a reason advanced by objectors and also the officers’ proposed response to that assertion, namely that Cabinet should recommend to Council that there should be no change. The officers note that that matter had been considered at the inquiry stage and so had been taken into account in the Inspector’s recommendations and in the Council’s proposed response.

On the 24^th October the Council’s Cabinet considered their officers’ report. The 8 members of the Cabinet resolved:-

“That independent legal advice be sought as to the susceptibility of additional modifications to the Plan exposing the Council to legal challenge, to a requirement for further public consultation and/or an inquiry and, in that event, the prospects for the Council’s successfully resisting any such challenges. It was further –

RECOMMENDED

That the Council be informed of the Cabinet’s [conclusions] to the effect that –

•

The response to the consultation exercise has not raised issues that are such as to justify a further public local inquiry;

•

No further modifications need to be proposed to the Huntingdonshire Local Plan Alteration in the light of the responses received; and

•

The Council should proceed to publish a notice announcing its intention to adopt the proposals contained in the Alteration after a period of 28 days.”

Next the officers drew up a report headed “Local Plan Alteration; Consultation Response and Process to Adoption”. Paragraph 1.1 of the Report said:-

“For legal reasons it recommends that no further change to the Alteration should be made.”

At 2.2 and 2.3 the Report said:-

“Members will recall that an independent Inspector recommended the deletion of some sites and the allocation of others along with some changes to policies. Legally the Council has to accept those recommendations unless adequate grounds exist for rejecting them (grounds that must be sufficient to withstand challenge in the High Court).”

At 2.5 to 2.7 the Report said:-

“The results of the consultation exercise, reported below, do not change this position; no issues have come forward which are considered sufficient (in legal terms) to justify further modifications. Hence to avoid potentially successful High Court challenges, the present report recommends that no further changes be made. It should be stressed that this recommended course of action does not mean that the Council is necessarily happy with nor endorses the new allocations concerned; rather, that it is obliged to accept the Inspector’s conclusions in the absence of sufficient legal grounds for rejecting them.”

At paragraph 4.2 the officers reported that:-

“…. The Council must have “adequate” grounds for rejecting any of the Inspector’s recommendations. This is a legal test which, in effect, means that authorities should accept an Inspector’s findings unless there are very good reasons to reject them. If recommendations are rejected without adequate reasons the Council will be open to legal challenges and the possibility that parts of the Plan will be quashed by the Courts.”

A little later at paragraph 4.3 the officers said:-

“Adequate reasons need to reflect substantive and relevant issues that justify going against what the Inspector has said.”

None of the objections, said the officers, were considered sufficient in legal terms to justify further proposed modifications to the Alteration. The officers recommended that the Council should resolve that the consultation exercise had not raised issues justifying a further Public Local Inquiry and that no further modifications should be proposed. Specifically, of Ermine Street, the officers indicated, as they had earlier indicated to the Cabinet, that valid points had been raised and they continued:-

“But the issues were considered at length by the Inspector and no additional evidence has come forward that is sufficient to reject her recommendations. The same is true of visual impact, which is also raised by objectors.”

The Councillors meeting on the 14^th November 2002 had this report before them.

The Cabinet, it will be remembered, had suggested that legal advice should be taken and at the special meeting of the Council on the 14^th November a summary of the legal advice received was read to those Councillors attending. It seems it was read from a prepared sheet rather than being composed as the speaker went along. The legal advice as read out by Councillor Holley O.B.E., the Council’s leader, referred back to the Cabinet’s resolution and, after he had read out words indicating that he was about to deal with the stage of the process by then reached, he continued:-

“In principle it is possible to propose further modifications as a result of representations received, but any further qualifications must be as a result of the contents of objections received and supported by adequate planning reasons.”

He indicated that the legal advice received was that the officers’ comments in the report prepared for the meeting were based on sound and adequate reasons and would pass the test of “adequate reasons”. He said that if the Council did propose further modifications supported by adequate reasons then the Council would need to repeat the whole modifications process. Later he added that any modification that removed a site without recommending an adequate replacement would be liable to being successfully challenged in the High Court and that “adequate reasons” were unlikely to exist such as to delete any particular site and replace it with a less sustainable site, namely one that was lower down the search sequence appearing in governmental guidelines, the PPG 3 pecking order. He said that a decision to substitute a different site for a deleted site of approximate equal capacity would have to be based on attaching different weights to the planning considerations in each case. He did not expand on how easy or difficult that might be, either as to Ermine Street or at all.

At the full Council meeting on the 14^th November to which I have already referred the 47 Councillors present included all 8 who had attended the Cabinet meeting on the 24^th October. As I have mentioned, the members present all had before them the officers’ report headed “Local Plan Alteration Consultation Response and Process to Adoption”. I shall refer later to evidence as to the meeting but the minutes themselves indicate that a number of Councillors expressed concern over the Inspector’s conclusions and as to the difficulties presented by the planning process in their representing their own views and those held by residents in their wards. It had been at that point that Councillor Holley had explained the content of the independent legal advice to which I have referred. The minutes continue:-

“The Council then considered the various issues raised at length and in particular, inter alia, those identified by Ward Councillors for Huntingdon ……”

Councillor N.J. Guyatt, who held the portfolio for planning strategy in the Council, responded to particular issues, so record the minutes, “as appropriate”. Then amendments to the motion were considered. A proposed amendment included, in respect of a particular proposed modification, that:-

“In the light of the consultation response, the Council gives greater weight than the Inspector to the importance of avoiding further erosion of the gap between St Ives and Houghton Grange …..”

and

“the Council attaches greater weight to the importance of maintaining a separation than it does to the importance of not disturbing the protected trees …….”

That amendment was lost by 35 votes to 5. Another Councillor then moved another amendment which was lost by 37 votes to 3, whereupon the substantive motion was finally voted upon and, as I have indicated, it was carried “nem. con.”. So far as material it was as follows:-

“(i)

That the response to the consultation exercise has not raised issues that are such as to justify a further Public Local Inquiry;

(ii)

That no further modification should be proposed in the Huntingdonshire Local Plan Alteration in the light of the responses received;

(iii)

That the Council should proceed to publish a notice announcing its intention to adopt the proposals contained in the Alteration after a period of 28 days; and

(iv)

That the leader and portfolio holder for Planning Strategy be authorised to notify the Deputy Prime Minister of the Council’s grave concern that the present Local Plan adoption process gives local planning authorities little scope to challenge an Inspector’s recommendations especially in cases where the Inspector proposes significant changes arising from sudden shifts in National planning policy.”

Pursuant to that part of the resolution Mr Derek Holley wrote to the Deputy Prime Minister on the 21^st November 2002 expressing the Council’s deep concern at the way in which the Local Plan process worked, he said, against local democratic principles. He pointed out that it was only during the conduct of the long inquiry before the Inspector that the Government guidelines, PPG 3, were revised and that in consequence, he said, many sites which had been proposed for housing development by objectors but had been resisted by the Council at the Inquiry had to be used after all to make up the numerical shortfall. He continued:-

“In turn this meant that there could be no active participation by residents and local town and Parish Councils in the process as even if they had been kept informed by the District Council, they would have had no right to be heard at the Inquiry when objectors sites are being discussed. This lack of access was the nub of the problem and denied people their rights to a fair and impartial tribunal which is now enshrined in the Human Rights legislation which your Government has enacted.”

Then, in a passage which Mr Katkowski Q.C. emphasises, Mr Holley continued:-

“Because the Council needed to have “adequate reasons” to challenge an Inspector’s recommendation it was faced with having to make significant changes to its Local Plan with little or no scope to manoeuvre. This left Councillors and residents feeling strongly that they had had insufficient ability to debate and influence the final choice of replacement sites and to a general feeling of exclusion in the closing stages of the process.”

Councillor Holley continued:-

“I believe this represents a fundamental flaw in the process which …. serves to negate local democratic accountability and bring enormous dissatisfaction with the development plan system.”

On the 9th December 2002 the Parliamentary Under Secretary of State, Mr Tony McNulty MP, answered the letter and remarked that in his view there could be little justification for all the parties concerned going to the time and expense of examining the adequacy of the Local Draft Development Framework and an Inspector’s report relating thereto only for the recommendations arising out of that process not to be taken forward. He indicated that the Government proposed that recommendations arising from the independent testing of draft Local Development Frameworks (by which I take it he meant an independent testing by way of an Inspector and his or her report) should be binding upon Local Authorities. Legislation to that effect has not yet come into force and I deal only with the position before any such change is made. The present subsidiary legislation, the 1999 Regulations, includes at Regulation 28:-

“(1)

Where objections have been made to a plan or proposals in accordance with these Regulations and not withdrawn and the Local Planning Authority do not cause a Local Inquiry or other hearing to be held, the Authority shall prepare a statement of their decisions as respects all the objections and their reasons for each decision.”

Regulation 29 (6) provides as follows:-

“Where objections have been made to proposed modifications in accordance with this Regulation and not withdrawn and the Local Planning Authority do not cause a Local Inquiry or other hearing to be held, Regulation 28 shall apply to the consideration of the objections as it applies to the consideration of objections to statutory plan proposals.”

In summary, it will have been seen that, despite the Council’s original objections, the Inspector had recommended that Ermine Street should be allocated for housing development, that the Council’s officers, post PPG 3, had, in June 2002, indicated to the Council that the Inspector’s conclusion as to that should be accepted, that in August 2002 Fairfield had objected to the allocation for housing of Ermine Street, that in October and November 2002 the Council’s officers proposed that the Alteration recommended by the Inspector should not be modified and that on the 14^th November 2002 the Council in effect concluded (inter alia) that the allocation of Ermine Street should stand and, moreover, should stand without any further Public Inquiry into the issue.

It is to be kept in mind, as Mr Purchas emphasises, that Fairfield does not now challenge in any way the Inspector’s reasoning or the Council’s or such facts as she or it relied on, nor is there any “Wednesbury” challenge. The only challenge now made is the one which for immediate purposes I can summarise as being that the Council set itself too high a hurdle. Nor had there been a slavish adoption of the Inspector’s recommendations; in two not insubstantial cases considered on 14^th November the Council declined to follow them.

That suffices by way of explanation of the factual background out of which there arise the 4 questions which I earlier identified. Accordingly I now turn to those questions.

Regulation 28 supra, whether applicable either directly or by way of Regulation 29, expressly requires of a Local Planning Authority only “A statement of their decisions as respects all the objections and their reasons for each decision”. Parliament has not chosen further to specify either of what the reasons need to or should not consist. Regulation 28 does not even make special provision, unlike Regulation 27, for the case where a decision does not follow a recommendation of an Inspector. That being so it would be wrong for the Courts to specify what has to be included or excluded beyond that which can reasonably be inferred from the context. That requires one to ask what is the purpose intended to be served by the giving of reasons. In my judgment that purpose, at any rate where, as in the case before me, an objector’s objections fail, is the giving to that objector (available also to others) its reasons for its decision to such extent at least as is sufficient to indicate to the objector whether or not reasonable grounds exist for a challenge to the decision under the relevant machinery for challenge, here section 287. Unless he is given reasons at least to that extent an applicant is prejudiced and, indeed, the test can be put as a single test as to whether the interests of an applicant have been substantially prejudiced by reason of the deficiency of the reasons given – Save Britain’s Heritage –v- No. Poultry Ltd [1991] 1 WLR 153 HL at 167 per Lord Bridge. The type of reasons which are likely to preclude any reasonable challenge will greatly vary from case to case and, in particular, as between, at one end of a spectrum, decisions wholly of fact and, at the other end, questions that may be called ones of planning judgment. Where, for example, an Inspector has recommended or an objector has asserted that a particular development should be refused as it would lead to a calculated number of vehicles being likely to be added to the traffic at some dangerous junction, then, in the absence of other planning grounds to counter that, equally specific reasons would be likely to be necessary before it could plainly be seen that no reasonable challenge could be made to the Local Planning Authority’s decision to grant housing permission. It would not be unreasonable to expect a clear rebuttal such as that no traffic would be added, or not in the numbers suggested, or that it would not join at the dangerous corner or that the corner was not in any event dangerous.

Whilst some of the issues that needed to be dealt with in relation to Ermine Street were undoubtedly of a factual nature there were many, indeed most, that could fairly be described as matters of planning judgment or even of pure planning judgment. For example where, in an appropriate sequential approach, was it right to put Ermine Street, which represented an extension to the existing market town of Huntingdon? Had Huntingdon already reached its environmental capacity? Was Ermine Street, a site in agricultural use, of high environmental value? Would the development be visually intrusive, intruding into open countryside? Was the site visually distinctly separated from the existing town? Would the development cause a sense of coalescence, taken to be undesirable, between two existing settlements? In all the circumstances, would the site environmental conditions be acceptable? Questions of such a kind cannot be reduced to straightforward issues of fact; they were largely matters of planning judgment on which reasonable people could reasonably differ. Because of that, at the planning judgment end of the spectrum, the one with which I am concerned, broader latitude is given to the Local Planning Authority; such matters are matters of judgment and it is to the Local Planning Authority that such matters have been entrusted by the legislature.

However, even at the planning judgment end of the spectrum, the test as to the possibility of grounds for a challenge which I have suggested introduces a host of possibilities amongst which will be these; can the Local Authority be seen fairly to have considered the objection; that requires an open mind. Can it be seen to have misunderstood it; in its consideration of it can it be seen to have taken into account only that which should have been taken into account. Can it be seen to have failed to take into account material which should have been taken into account; are its reasons as expressed intelligible; are the reasons as expressed such that, having regard to planning law and guidance generally, they could provide an acceptable and rational ground for the decision concerned? Although a number of authorities speak of reasons needing to “grapple with” the recommendation or issue concerned, for my part I do not take that as necessarily indicating that what, in old pleading terms, would have been called a “confession and avoidance” is necessarily inadequate. Thus, for example, an Inspector’s recommendation or an objection that a site should not be allocated to housing on account of its outstanding beauty, beauty enjoyed by the public in an area where such beauty was rare, is a conclusion that could be adequately met, without an assertion that the land was not of outstanding beauty, was not enjoyed by the public or that beauty was commonplace in the area, by an authority regretting that, despite the admitted beauty, the required low cost housing was completely unavailable elsewhere. Nor, as it seems it to me, is it any necessary part of a test of a Local Planning Authority’s reasoning that not only could its reasons provide an acceptable and rational ground for the decision concerned but that, objectively regarded, its reasons did so provide such a ground. That, were it so, would involve the Court becoming involved in the question of whether one legitimate planning ground truly outweighed another, an issue, amongst others, which the Courts have recognised as not being for them but to be for the Local Authority itself – see Gillenden Development Co. Ltd. –v- Surrey C.C. (1997) 74 P & CR C.A. 119 at 125 per Pill LJ; Welsh Development Agency –v- Carmarthenshire C.C. (1999) 80 P & CR 192 C.A.. It is thus no necessary part of the adequacy of a Local Planning Authority’s decision either not to follow an Inspector’s recommendation or to be unpersuaded by an objector’s objection that in some objective sense the Inspector’s recommendation can be shown to be wrong or that the Council’s reasons can in some such sense be shown to be “better” than the objector’s.

The expressed reasons need to be proper, adequate and intelligible – Westminster Council –v- Great Portland Estates plc [1985] 1 AC 661 at p 673d per Lord Scarman - but there is no requirement that they should not be summary. They can be brief and yet be found adequate – see e.g. Centre 21 Ltd. –v- Secretary of State [1986] 2 EGLR 196 C.A. at p. 200g-h; p. 201l. I respectfully adopt also, in relation to a case of planning judgment, a passage from the judgment of Schiemann L.J. in Welsh Development Agency supra at p. 201. After referring earlier to Stirk –v- Bridgenorth DC [1997] 73 P & CR 439 C.A. he said:-

“I do not consider that the Stirk case is authority for the proposition that a Council is never entitled merely to repeat its previous statement of a pure value judgment when an Inspector disagrees with that value judgment. If the only issue is, for instance, whether a field and the trees thereon contributes significantly to the beauty of an area, no further elaboration is required.”

Whilst, in an appropriate case, a Council may merely repeat its earlier views on an issue of planning judgment, if it does so without some further exposition it provides ammunition for those wishing to assert that it had a closed mind and that the Inspector’s report or the objection, as the case might be, had therefore not been truly considered.

Nor is it, (at any rate where there is no request from the Council in such a behalf and where there is no manifest confusion or misunderstanding) that Council members have to be given and be seen to have been given, at any particular meeting or at all, advice as to what might or might not, either generally or in a particular case, be “adequate” planning reasons. No authority I have been shewn goes so far.

Indeed, throughout it needs to be remembered what the respective rôles are of the Inspector and the Local Planning Authority in the Local Plan system. As it was pithily put by Sullivan J. in Bainbridge –v- Hambleton DC (1999) 80 P & CR 61 at 71:-

“… The former inquires and recommends, the latter decides in the light of the inquiry and recommendations.”

The authority has the last word – Welsh Development Agency supra at p. 198. The plan or alteration that emerges, as Mr Katkowski emphasises, has to be that of the Local Planning Authority, not of the Inspector. It has to be their plan; so long as the Inspector’s report or proposed modification has been adequately considered the Local Planning Authority has a broad discretion as to whether and how to act in the response to the recommendation – Pickering –v- Kettering DC, C.A. 17^th July1996 Q.B. CDF/0929/D at the unnumbered paragraph at the top of page 8 of 11.

Mr Katkowski drew attention to the passage in the officers’ report of 14^th November 2002 that the course of action then recommended “does not mean that the Council is necessarily happy with nor endorses the new allocations ….” . There is no requirement that a Local Planning Authority should be “happy” with conclusions to which it is constrained to arrive, perhaps by way of government guidance or by the inescapable pressures of shortages of housing and of land. However, whilst I attach no weight to that point, I have no doubt but that the officers’ advice given to the Council set too high a hurdle for the Council to clear before it could be safe to determine the question of the allocation of Ermine Street for housing contrary to the Inspector’s recommendation that such allocation should be given. As I have already mentioned, the question involved many matters of planning judgment yet the advice given to the Council, had it been acted on, would, in my judgment, either have left it imperfectly advised or over-circumscribed. Thus for the officers to have repeated that the reasons needed to be “adequate”, as they did, was little more than a truism unless some explanation was given of what the word meant in the planning context and, more particularly, in the context of issues of planning judgment. Nor is there, as yet, any “legal test” which can be fairly summarised and be applicable over the whole range of planning decisions such that a Local Planning Authority “should accept an Inspector’s findings unless there are very good reasons to reject them” (my emphasis). Further, to advise the Council (the high-water mark of Mr Katkowski’s argument) that the issues had been considered at length by the Inspector “and no sufficient evidence had come forward that is sufficient for it to reject her recommendations” (my emphasis) implied, wrongly in my judgment, both that contrary evidence needed to be found and that such material had to be additional to that on which the Council had earlier relied. That would have denied the Council, were it to have acted upon such advice, a potentially invulnerable reliance upon its earlier planning judgment.

I do not see the orally-delivered independent legal advice as a sufficient correction of the advice earlier given by the officers. It was only read out and it is hard to judge the extent to which it could have been taken in at the time, but, even poring over its written form, as has been done, leaves one unclear about what the adviser meant by “adequate” planning reasons and, whilst the adviser indicated that departure from the Inspector’s conclusions was possible, he or she gives no clear indication of how relatively easy that could be where matters of pure planning judgment were concerned.

The officers had a far from easy task when they came to summarise the legitimate scope for departure from the Inspector’s recommendations. It is, though, hard to escape the feeling that the officers, alarmed at the possibility of the very long and, no doubt, expensive planning process already endured having to be repeated in whole or in part upon a successful challenge if the Inspector’s views were not adopted, consciously or unconsciously then held the Inspector’s conclusions in terrorem over the Council. Ironically, their doing so has itself caused a challenge. If the Council could be seen to have acted as the advice given to them suggested I would have been satisfied that a discretion under section 287 would have arisen but, of course, what is required to be examined here is not, or not only, the advice from the Council’s officers but how the Council acted after that advice.

As to that, the minutes of the meeting of the 14^th November 2002 indicate that issues were raised at length. The two amendments to the main motion indicated an awareness on at least some Councillors’ part that giving greater weight than the Inspector had done to particular issues was a possible justification for departing from the Inspector’s conclusions. The fact that the motions were voted down does not prove that Councillors had no such an ability in mind. I also have evidence from two persons who were at the meeting. Dr M.S. Bingham, the Policy Team Leader in the Planning Division of the Council, attended the meeting. He says:-

“I was present at the meeting. From the discussion that took place and in light of the summary of legal advice I am in no doubt that Members appreciated that they could reject recommendations of the Inspector if they had relevant reasons to do so. Indeed that was the basis on which they decided to reject certain recommendations.”

Councillor Holley, leader of the Council, was also at the meeting. He had been an elected Member of the Council, by November 2002, for some 13 or 14 years. He had been a member of the Council’s Planning Committee from 1984 to 1995 and, from 2000 to 2001, a member of the Development Control Panel. From 2001 he had also been Chairman of the Cabinet. He says:-

“In the light of the summary of legal advice that I read to the Council I am in no doubt that Members were fully aware that we were able to reject the recommendations of the Inspector so long as we had planning reasons for doing so. That is well borne out by the nature of the debate and the decisions that we made to reject certain of the recommendations that she made. I should also make it clear that I was clear as to our power to require a new Inquiry into proposed modifications if we had considered it appropriate in the light of any new issues that had been raised. I am confident that my fellow Councillors were similarly aware.”

On the footing that the Council acted on the basis I have just mentioned I am not satisfied that the Council set itself too high a hurdle, too stringent a requirement, before it could take a view different to that which the Inspector had expressed in relation to Ermine Street. A Council which goes on at the modifications stage and upon a full and open-minded consideration of the relevant objections (the contrary is not asserted) to require nothing more stringent than the existence, in its view, of a relevant planning reason to do so before feeling able safely to come to a conclusion differing from an Inspector’s earlier conclusion is not, in my judgment, a Council which is improperly circumscribed.

However, Mr Katkowski has one shot left in his locker. He argues that the Council’s resolution as to the letter to be sent to the Deputy Prime Minister and the letter itself showed that the Council had, indeed, felt that it had “little scope to challenge an Inspector’s recommendations” and “little or no scope to manoeuvre”. The Council, he says, plainly took itself to be as wrongly over-circumscribed as its officers’ advice had suggested it was; it failed to see, he says, that in truth it had ample scope for manoeuvre and plenty of scope for challenge.

Councillor Holley in his evidence says, of the letter of which he was author:-

“As will be seen particularly from paragraphs (b) and (d) of the letter, the principal concern of Members was the impact of PPG 3.”

That is a reference to “Planning Policy Guidance Note 3 – Housing” which I touched on earlier and which was issued in March 2000 and gave guidance as to the adoption of a sequential approach, of a search sequence and of an assessment of criteria in relation to the selection or not of land for housing that differed substantially from earlier guidance.

Continuing with Councillor Holley’s evidence he said:-

“This had been issued during the course of the Inquiry and had resulted in the Inspector recommending the deletion of two major sites included within the deposit Alteration Plan by the Council, namely Ramsey West, which had been allocated in the 1995 plan and RAF Upwood. As a consequence the Inspector had to find alternative sites to make up the shortfall in housing numbers, principally from amongst those put forward by objectors, to which the Council had previously objected. The limited number of sustainable sites to choose from at this relatively late stage in the process left many members feeling frustrated.”

That, as it seems to me, suggests that what circumscribed the Council was not the stringency of any legal test or any legal difficulty in finding “adequate” reasons to depart from the Inspector’s views but the factual difficulty that under the new PPG 3 guidance so few sites were open for selection for housing that if the required number of houses were to be built there was little room to refuse allocation. It was the facts not the law that circumscribed the Council. Moreover, the citations I have included – paragraphs 35-37 above - from the letter to the Deputy Prime Minister shows that the Council’s complaint was a very broad one going to Human Rights and democratic accountability as to which the Council, if it wished to make representations at all on such a political issue (albeit not, in context, a party political issue) would no doubt wish to make them as forcefully as possible, even, perhaps, without a scrupulous awareness of a need to avoid over-emphasis or even exaggeration. It was, after all, making a political point, not a witness statement. Further, I cannot think that a Council which feels that insufficient respect is paid in the planning process to such views as it, the locally-elected body would, if entirely free, have held, is, merely on that account, necessarily a Council acting upon a wrong view of the situation needed if an Inspector’s conclusion is not to be followed. In the circumstances, whilst I see the force of Mr Katkowski’s argument, I do not feel able to conclude that it displaces the evidence of Messrs Bingham and Holley that (to conflate the two) the membership were aware that it sufficed for the Council to have relevant planning reasons if the Inspector’s recommendations were not to be followed.

In the circumstances the fourth of the questions which I posed does not arise as question 3 has been answered in the negative.

As I mentioned at the outset, I would assume for the time being that Fairfield was entitled to claim as it did. However, on behalf of the Interested Party, which otherwise merely adopted the Council’s arguments, it was argued that Fairfield is not a “person aggrieved” within section 287 (1) and that, irrespective of the Court’s decision on the questions dealt with so far, it could not have been substantially prejudiced within the provisions of section 287 (2) (b). Mr Purchas did not adopt this argument.

Mr Katkowski produced Partnership Heads of Agreement and office copies of applications for registration of a Land Charge, an option in respect, not improbably, of all or part of Ermine Street’s great rival, Cardinal Park. None of these papers was submitted early enough to receive scrutiny in depth in advance of the hearing but were such as, at first glance, to be likely to have shown an interest of a conventional legal or equitable kind of the Fairfield Partnership in Cardinal Park and that the Fairfield Partnership did indeed subsist as a duly constituted partnership. However, I did not see it as necessary further to pursue the Interested Party’s doubts as to title or existence. Fairfield, as I have noted, was, under the Fairfield Partnership name, listed by the Inspector as being present at the Inquiry in 2000 and can be seen to have been treated as a proper objector at and after the lodging of objections on its behalf by Januarys. In context the Claimant entity, whatever its constitution, is, in my judgment, sufficiently “aggrieved” for the purposes of section 287 (1) upon its asserting an arguable case, one not sought to be struck out in advance of the full hearing, that its duly-lodged objection had been dealt with by the Council in error of law. Accordingly I hold that Fairfield has been entitled to complain in the manner in which it has complained.

Despite that, for the reasons I have given earlier, Fairfield’s complaint that its objection to the allocation to Ermine Street was not duly considered and dealt with is, in my judgment, not made out and the discretions under section 287 (2) (b) thus never arose. I must therefore dismiss Fairfield’s claim.