JS Bloor (Wilmslow) Ltd. & Ors v First Secretary of State

Chapter 4 of the draft RPG contained a number of policies relating to the Spatial Development Framework. Policy SD1 dealt with conurbations in the Mersey Belt, policy SD2 with other settlements in the Mersey Belt, policy SD3 with settlements outside the Mersey Belt, and policy SD4 with development in rural areas. In particular, policy SD3 provided:

“Outside the Mersey Belt, development will be concentrated in the following regional towns and cities:

…

•

Cheshire: Chester, Crewe and Macclesfield ….”

Paragraphs 4.14-4.15 of the commentary referred to the "Mersey Belt Southern Crescent" (defined as including South Stockport, South Machester, South Trafford, Warrington, Runcorn, North Macclesfield, Ellesmere Port and Chester) and made certain very general comments about the kind of development that should be promoted in that area and other areas of economic opportunity. The commentary continued:

“4.16

The regional towns and cities of Preston, Carlisle and Chester act as administrative centres in their own right The two cities, along with Crewe, also form gateways to adjoining North Wales, North East England, West Midlands and Scotland and should make the best use of brownfield and urban land that is most accessible by a range of modes of transport. Many of the challenges facing the two main conurbations, particularly the need to tackle urban renaissance in an integrated fashion that promotes sustainable neighbourhoods and land use patterns, apply equally to other regional towns and cities.

4.17

In Cheshire the environment and the relative prosperity of the local economy generate demand for housing and other land uses over and above the County's own needs. This demand should continue to be resisted to support the urban regeneration of the conurbations and relieve pressure on areas of constraint within Cheshire together with traffic congestion. Provision for housing and other land uses should therefore be based principally on meeting the county's own population and housing needs. Development within and around Chester will need to respect both its historic character but also its own functional relationship to North Wales. Similarly development within Crewe must take account of its relationship with the Potteries and North East Staffordshire. In Macclesfield the focus will be on accommodating development within the existing urban areas.”

In its representations to the Panel, HLC suggested a significant rewording of paragraph 4.17, whereby the demand for housing and other land uses over and above the county's needs "should continue to be met", rather than being resisted, and that to meet the demand in the most sustainable locations a general review of the Green Belt should be undertaken.

The issues were then discussed at the Panel hearings. This was followed by the Panel's report to the Secretary of State, in which the Panel recommended that references to the Mersey Belt Southern Crescent should be omitted from the RPG and that consequential revisions be made, including "revision of Draft RPG paragraph 4.17, taking on board points from paragraphs 4.14 and 4.15, to give positive guidance for northern Cheshire" (Panel report, para 5.72, recommendation R5.5). The Panel's reasoning was that it was recommending a wide definition of the "Mersey Belt" and that what was left of the "Southern Crescent" would fall entirely or almost entirely within Cheshire; and guidance in relation to it could therefore be given by a revision of the commentary at paragraph 4.17, taking on board some of the observations at paragraphs 4.14 and 4.15 without referring to the Southern Crescent as such (see Panel report at para 5.54 in particular).

A separate recommendation by the Panel was the addition of Northwich to the list of towns in Cheshire in policy SD3 (see Panel report, paras 5.67 and 5.72, recommendation R5.9(a)).

It is clear that the Panel did not accept HLC's case that the guidance for Cheshire should be reworded so as to refer to the meeting of demand over and above the county's needs rather than resisting it.

The revised draft RPG13 published by the Secretary of State after consideration of the Panel's report included substantial changes to the chapter on the Spatial Development Framework. One of the changes to policy SD3 was the addition of Northwich to the towns to which the policy applied, in order to reflect the Panel's recommendation R5.9(a). Thus the revised policy SD3 read, so far as material:

“To the north and south of the North West Metropolitan Area, development will be concentrated in the following key towns and cities:

….

•

to the south, Chester, Crewe, Macclesfield and Northwich ….”

More importantly, the revised draft contained a new policy numbered SD4 (unrelated to the policy SD4 in the previous draft) and headed "Maintaining Urban Form and Setting, and the Treatment of North Cheshire". It provided that "North Cheshire" was to be interpreted for the purposes of the policy as "the northern edge of the County of Cheshire, running west to east from Chester to Macclesfield, and to the north of the 'A roads' connecting Chester, Tarvin, Kelsall, Northwich, Knutsford and Macclesfield, plus that area of Warrington BC which lies south of the Manchester Ship Canal". The relevant substantive part of policy SD4 stated:

“Given the continued high demand for development in the North Cheshire area, much of which is in the Green Belt, all development plan allocations in that area, specifically should be immediately reviewed to ensure that any existing and proposed land allocations for further development in the North Cheshire area are fully justified having regard to the Core Development Principles, and this Spatial Development Framework. In North Cheshire, outwith the North West Metropolitan Area, only those allocations which are sustainable and which will add significant value to the development of the national economy or which are of greater than regional significance should be retained ….”

The stated reasons for the addition of the new policy were:

“To provide positive guidance on North Cheshire as recommended by the Panel - R5.5 - in the context of a broader statement on maintaining urban form, bearing in mind the fact that much of North Cheshire lies within the Green Belt, and to define North Cheshire, for the purpose of this Policy, more precisely.”

The commentary was also revised, "to provide positive guidance on the North Cheshire area as recommended by the Panel - R5.5". The revised commentary made clear in paragraphs 3.23-3.25 that the review of allocations applied as much to brownfield land as to greenfield land and that "[t]o the extent that allocations are proposed which do not respect Policy SD4 in this RPG and supporting guidance on this matter, they will be resisted by the Secretary of State".

The claimants' consortium, HLC, made representations in very strong terms about the proposed policy SD4. It was one of the policies in respect of which the covering letter specifically requested that the Panel be reconvened. The letter described it as "a wholly new policy" and as imposing a test that was "a drastic step … not based on any existing national policy guidance". It explained that the members of HLC had obtained interests in land in the area concerned in reliance on up to date development plan allocations and that "[t]o threaten those allocations, and to make so drastic a change, requires proper informed scrutiny as if that policy had been published in the draft RPG".

In addition, HLC's detailed representations on the proposed policy SD4 stated:

“A.

Much of this policy contains important new material that has not been the subject of scrutiny by the Public Examination Panel, including the requirement that all development plan allocations in the North Cheshire Area should be immediately reviewed. Because of the importance of this new material, and the extent to which it would affect interested parties including members of the Consortium, the Public Examination should be re-opened to examine it.

B.

There is no basis to review all existing development plan allocations in North Cheshire and seek their deletion unless they "add significant value to the development of the national economy or which are of greater than regional significance". This is an impossibly high test that cannot be met by most development proposals, other than for specialist employment purposes. No housing, retail or local employment allocation could meet such a test, although such allocations are likely to fulfil other important planning objectives, such as the need to achieve more sustainable patterns of developments as well as the other matters set out in paragraph 3.24.

C.

There is inconsistency in the Proposed Changes on whether development for local needs in North Cheshire should be allowed. The implication of Policy SD4 is that local needs will not be satisfied. This must be the inevitable consequence of the test that only allocations which "add significant value to the development of the national economy or which are of greater than regional significance should be retained". However, such an outcome seems inconsistent with the statement in paragraph 3.18 that Cheshire should continue to meet its own local needs. Similarly, the identification by Policy SD3 of Chester, Northwich and Macclesfield as key towns and cities where development should be concentrated also appears contrary to Policy SD4 as these towns lie within the general area defined as North Cheshire.

D.

The policy for North Cheshire should be less prescriptive ….

…

F. As the content of Policy SD4 is almost wholly new and has not been considered by the Panel, the Public Examination should be re-opened to consider it.”

Those representations were received and considered by the Secretary of State but led only to minor changes in RPG13 as finally issued by him. Policy SD3 was materially the same as in the Secretary of State's previous draft. Policy SD4 was materially the same save that it contained additional wording permitting the retention of allocations "which meet purely local needs", thereby meeting one of the specific points made by HLC. The relevant paragraphs of the commentary were likewise to the same effect as before, save for a reference to the retention of allocations that allowed for the meeting of purely local needs.

I have referred to the principal passages in the documentation, though it is right to record that both Mr Gilbart and Mr Brown also took me to some others.

The submissions that Mr Gilbart advanced for the claimants in the light of that material can be summarised as follows:

The submissions of Mr Brown for the Secretary of State were in summary as follows:

In my judgment policy SD4 does go significantly further than the debate at the public examination and than the Panel recommended. What the Panel said in its report about the review of development plans seems to me to fall a long way short of consideration of a requirement to review existing development plan allocations by reference to the stringent criteria contained in the policy. The inclusion of such a requirement was an important matter on which the claimants had substantial points to make.

Those points, however, could be made adequately by way of written representations. To the extent that the claimants now rely on arguments or evidence that they failed to include or refer to in their written representations, they cannot expect those matters to carry weight in a procedural challenge to the Secretary of State's decision. The points they did make in their written representations were taken into account by the Secretary of State, as is shown by the fact that the final version of the policy responded to them by making provision for the retention of allocations that meet purely local needs.

The Secretary of State was entitled to take the view that he had sufficient information on which to decide the final form of the policy without reopening the public examination or holding further meetings or having any other form of further consultation. The criticisms directed towards the final form of the policy are not expressed in terms of an irrationality challenge and such a challenge could not succeed.

The principal arguments advanced with regard to breach of legitimate expectation, departure from policy and procedural unfairness are considered in the body of the judgment.

Chapter 6 of the draft RPG contained two policies relevant to the present case. The first, policy UR4, concerned targets for recycling:

“The redevelopment and re-use of vacant sites and buildings within urban areas should be a priority. New development should be encouraged to make best use of such sites in sustainable locations.

Local Authorities should ensure that an average of at least 65% of new dwellings, including conversions, constructed in the region between 1996 and 2021 should use previously developed land and existing buildings in sustainable locations in line with the sequential approach to development set out in policies CS1-3 and SD1-5. However, it is recognised that variations exist in the amount of previously developed land and buildings in sustainable locations across the regions and in preparing development plans local planning authorities should adopt the following subregional targets:-

•

Mersey Belt Conurbation Cores, on average at least 85%

•

Rest of Conurbations and Other Settlements in Mersey Belt, on average at least 65%

•

Outside of the Mersey Belt, on average at least 50% ….”

The Panel heard competing views on the appropriateness of those targets, the claimants being amongst those who argued that they were too high. The flavour of the debate and of the Panel's approach is conveyed by the following passages from its report:

“7.63

Table 10 in the Housing Background Paper sets out the basis for the targets included in Policy UR4. These are derived from the results of the housing potential studies ….

7.64

In paragraph 7.43 above we have referred to the reservations held by HBF and others as to the reliablity of the urban potential studies and their likely accuracy ….

7.65

There is also evidence from land use change statistics that an average of 61% of new dwellings have been built on previously developed land in the North West between 1992 and 1996. Bearing in mind that the national target is that 60% of new housing should be provided on previously developed land, and through conversions, by 2008 an overall target of 65% for the North West region, where there is a relatively high proportion of previously used land, does not seem to us to be unrealistic or unachievable ….

7.66

NWRA have recognised that there will need to be concerted effort by local planning authorities, and an increase in resources, to enable the achievement of the targets set. However, we commend these as being entirely in line with the direction taken in Government policy, most recently in the Urban White Paper. The Merseyside Policy Unit confirmed at the Examination that they foresee little difficulty in achieving either the 85% target in the conurbation cores or 65% in other parts of Merseyside. The Greater Manchester Authorities 'aspire to reaching somewhat higher proportions'. Table 10 suggests that the potential in Cheshire is 52% brownfield although Cheshire County Council stated at the Examination that they can achieve 44% although much higher proportions will be met in Chester and Macclesfield. Lancashire Joint Structure Plan Authorities may well achieve 65%, with 70% in East Lancashire. Only Cumbria expressed serious reservations about the feasibility of achieving the 50% target for their area, but NWRA recognise that the figures are average and that specific targets will be set in individual development plans.

7.67

Despite the reservations of the development industry, we consider that Draft RPG is based upon as reliable an information base as is possible at the present time ….

7.68

Both CPRE and FoE advocate a more rigorous approach ….

7.69

NHF and others hold that the 65% regional target is very low and most unambitious for the Region. The suggested proportion varies widely from 100% to 70%. We have considered whether the regional and sub-regional targets ought to be higher for the reasons set out in paragraph 7.67 above. Bearing in mind the uncertainties about true urban capacity it seems to us better to set a target which should have a reasonable prospect of being met, rather than one which is unduly aspirational ….

7.70

The inclusion of the words 'on average' in Policy UR4 suggests some form of mechanism to ensure co-ordination between the local planning authorities to achieve both the regional and sub-regional targets. From what we heard at the Examination, it appears that most local planning authorities will be able to set targets in their individual development plans at or above the sub-regional figure, but not all ….”

The Panel went on to recommend some redefinition of the sub-regions and various textual changes. It also recommended various sub-regional targets, but without changing the regional average target of 65%. The effect of the Panel's conclusion was spelled out in recommendation R7.2, at paragraph 7.98 of its report, namely that policy UR4 should be amended so as to read in material part:

“The regional target is that at least 65% of new dwellings, including conversions, constructed in the region between 1996 and 2016 [should use previously developed land and existing buildings, etc.] … [and in preparing development plans local planning authorities should] aim to achieve the following targets through co-operative working within the specified areas and in conjunction with adjoining authorities:

•

Merseyside area (including Halton), on average at least 65%;

•

Greater Manchester area (including Warrington), on average at least 80%;

•

Cheshire 50%; Cumbria 45%; Lancashire 60%.

Within the conurbation cores of Manchester, Salford and Liverpool it is expected that at least 85% of new housing will be on previously developed land.”

In the draft RPG issued by the Secretary of State after considering the Panel's report, generally higher targets were adopted:

“The regional target is … at least 70% … and in preparing development plans local planning authorities should aim to achieve the following targets, through co-operative working within the specified areas and in conjunction with adjoining authorities:

•

in the Liverpool and Manchester/Salford City Council areas, on average at least 90% of new housing will be on previously developed land;

•

in the remainder of the Merseyside area, and Halton, on average at least 65%;

•

in the rest of the Greater Manchester area, and Warrington, on average at least 80%;

•

in Cheshire at least 55%; in Cumbria at least 50%; and in Lancashire at least 65%.”

Many of those figures involved an increase of 5 percentage points over the Panel's recommendation. Mr Gilbart sought to show by detailed calculations that the figures for the remainder of the Merseyside area and Halton represented in reality a much higher increase (and that the Secretary of State was wrong to state in his summary of grounds for contesting the present claim that the figures were only "slightly" different from those recommended by the Panel). But the detailed point made by Mr Gilbart was not a point included in the claimants' representations at the time and in the circumstances I do not need to reach a conclusion on the calculations now put forward.

The stated reasons for each of the main changes proposed by the Secretary of State were:

“To accord with the Panel's recommendation, and to raise the recycling targets in order to reduce the amount of greenfield development.”

Neither through HLC's covering letter nor in the detailed representations put forward by HLC did the claimants seek a re-opening of the public examination in respect of the proposed changes to policy UR4. The detailed representations stated:

“The Consortium welcomes the emphasis that the Proposed Changes give to the recycling of previously developed land including vacant buildings. However, it considers that the increases proposed by the Secretary of State to the recycling targets are unrealistic based on its Members' considerable experience in the development of previously developed land and the likely availability of potential new sources throughout the Region. The increases are not in line with the recommendations of the Public Examination Panel who carefully considered all the evidence then available, nor is there more recent information available which would act as justification ….

The Secretary of State has given no adequate reasons for the new recycling targets. The Statement of Reasons merely notes: 'To accord with the Panel's recommendations and to raise the recycling targets in order to reduce the amount of greenfield development'. These are not valid reasons. The increase in the targets have not been supported by the Panel. Moreover, an increase in the targets by itself will not reduce the amount of greenfield development required if there is insufficient previously developed land available to meet the Policy UR7 requirements. On the other hand, if the targets are maintained to the cost of other planning objectives the consequence will be that the housing needs of the Region are not met.

The Guidance should revert to the recycling targets proposed by the Public Examination Panel ….”

Notwithstanding those representations, no material change was made to policy UR4 in RPG13 as finally issued by the Secretary of State.

Mr Gilbart submitted that the feasibility of meeting targets is an important matter, which the Panel is well able to determine through its independent scrutiny of the material before it. If new targets are set, they deserve the same process.

Mr Brown, for the Secretary of State, made the simple point that no request was made at the time for a re-opening of the inquiry and that that ought to be an end of the matter. Nor should the claimant be entitled to rely on detailed points that were not advanced at the time. The fact is that the Panel considered arguments and evidence either way. It is clear from the Panel's conclusions that this is not an exact science but involves policy choices. The Secretary of State had all the material before him and took the view that the figures should be higher. It was not irrational for him to take the view that he had sufficient information or for him to reach the conclusion he did.

I need say no more by way of conclusion on those matters than that I accept Mr Brown's submissions. The claimants' wider arguments on breach of legitimate expectation, departure from policy and procedural unfairness are again considered in the main body of the judgment. So too are the arguments concerning the adequacy and rationality of the reasons given by the Secretary of State for the proposed changes.

Chapter 6 of the draft RPG also contained policy UR7, which provided that:

“Local Planning Authorities should plan for a provision of 357,400 dwellings (net of clearance replacement) within the North West for the period 1996 to 2021.

Development Plans should incorporate the requirements set out in Table 6.1 ….”

The total figure of 357,400 dwellings was based on a projected growth of 343,000 households during the period (a higher figure than the government's 1996 projections) with adjustments for vacancy rates etc.

Table 6.1 gave figures for the distribution of dwellings by strategic planning area for the periods 1996-2011 and 1996-2016 and for the total period 1996-2021.

At the public examination before the Panel some argued for higher figures than the draft RPG and others for lower figures. There were also arguments about how the figures should be distributed between areas. The claimants, through HLC, supported the overall scale of housing provision in the draft RPG but contended that the figures should be expressed as an annual rate of completions.

The Panel's conclusion on the overall level of housing provision was expressed as follows in its report:

“7.22

We do not consider it necessary for there to be hard evidence of an upturn in the regional economy for the RPG to make provision which is above the level of the 1996 projections ….

7.23

Our overall conclusion is that there is no strong case for taking an alternative approach to that in Draft RPG. The figure for regional housing provision is aspirational and may prove too high but it is pragmatic taking account of the existing level of commitments and past building rates. The draft RPG represents a significant reduction, especially during the period after 2011, from past rates. There would, however, be dangers in making too high a level of provision which might result in unnecessary land allocations for housing, despite the monitoring systems in place.

7.24

For these reasons, we do not recommend any alteration to the overall level of provision for 1996-2021 as stated in the first part of Policy UR7, subject to our conclusion in paragraph 7.35 below about the treatment of the post-2016 period.”

The reference to paragraph 7.35 was to the Panel's recommendation that the figures for the 2016-2021 period should be for guideline purposes and should not be used as a basis for development plan reviews beyond 2016. The Panel also recommended that table 6.1 be revised to show annual rates, rounded to the nearest 10 (paragraph 7.26) and that the base date should remain as 1996 (paragraph 7.29). It could find no basis for any fundamental change to the housing distribution figures in the table other than to express them as annual rates to 2016 only (paragraph 7.55).

The Panel made detailed recommendations R7.5 to R7.8 accordingly, at paragraph 7.98 of its report. A revised table 6.1 included annualised figures amounting to 15,940 dwellings a year for the period 1996-2011 and 12,360 dwellings a year for the period 2011-1016. Those figures equated in total to the figures in the original version of table 6.1.

The revised draft RPG published by the Secretary of State after consideration of the Panel's report included lower figures than those contained in the original draft and recommended by the Panel. Policy UR7 provided that local planning authorities "should monitor and manage the availability of land identified in development plans to achieve the annual rates of housing provision set out in Table 5.1", i.e. the revised version of the former table 6.1. Table 5.1 gave figures amounting to 12,790 dwellings a year. Paragraph 5.1 of the commentary provided that those annual rates should apply from April 2002 to 2006 and that, where development plans were reviewed and new plans extended beyond 2006, they should continue to provide for additional dwellings at the same annual average rate until such time as any different rate was adopted following review of the guidance.

Extensive reasons were given for the proposed changes to the level of housing provision as set out in policy UR7 and table 6.1. They included:

“The level of housing provision, as expressed through the annual rates, has been reduced from that proposed in draft RPG. In making this reduction the Secretary of State has had regard to:

•

economic growth rates which have been lower than anticipated in the draft RPG;

•

the above-average numbers of vacant homes and the high reported incidence of low demand within the Region; and

•

the need to promote more sustainable patterns of development.

The draft RPG level of housing provision significantly exceeds the 1996-based household projections. It has as its economic basis a 'high (maximum) growth' scenario, which utilises the 1996-based household projections and applies to them a high (2.5% annual growth in GDP) growth rate and a reduced rate of unemployment. Actual growth to date is nearer to the draft RPG's 'moderate growth' scenario, suggesting necessary housing provision would accord with the 1996-based household projections (249,000 dwellings by 2016). In the Secretary of State's view, the draft RPG level of housing provision also pays insufficient regard to vacancy rates and the incidence of low demand. Accordingly, the Secretary of State proposes the annual average rate of housing provision to be based upon a total provision of 256,000 dwellings over the period 1996-2016. Whilst this is a reduction of 15% on the draft RPG provision, it is still in excess of that implied by the 'moderate growth' scenario.

Policies UR6 and UR7 are intended to reduce vacancy levels to 3% in the existing stock, and 2% in the new stock ….

The process of formulating the annual rate of housing provision then involves the following stages:

•

starting with the number of households envisaged by draft RPG and the Panel for 2016, 288,263;

•

applying revised vacancy rates - 3% in the existing stock, and 2% in the new, as compared with the 4.2% rate used in the draft RPG figures for both existing and new stock;

•

subtracting 37,200 (the difference in dwellings between the 4.2% and the 3% vacancy rates in the existing stock), and adding 2% to reflect the vacancy rate in the new provision, to give a total provision of 256,084;

•

reducing the present (Panel) annualised rates by 15% (the % difference between the old (300,900) and the new (256,084) overall levels of provision; and

•

expressing the new rates as one series of 20-year average rates (rather than the two series used in the Panel's report, for 1996-2011 and 2011-2016) ….”

Mr Gilbart submitted that there was some confusion in the figures and that the annualised figures contained in the revised draft were in fact 20% below the figure recommended by the Panel for the period 1996-2011, rather than 15% below as stated by the Secretary of State. Mr Brown took issue with that submission. At the heart of the argument is whether the adjustment made by the Secretary of State to the vacancy rate was additional to the 15% reduction or was taken into account in making the 15% reduction. I am inclined to favour the latter view, as put forward by Mr Gilbart, but I do not need to decide the point since it formed no part of the claimants' representations to the Secretary of State at the time.

The representations made by the claimants at the time, through HLC, urged the Secretary of State to reconvene the Panel to consider the proposed changes to policy UR7. This was one of the policies identified in the covering letter as calling for consideration by the Panel. The letter stressed in particular that (i) the level of housing provision was a topic explored by the Panel, but it was not asked to address or consider the justification for, nor effects and implications of, the figures now proposed; and (ii) a reduction in the rate of housebuilding would have a marked effect on the prosperity of the region. In the detailed objections to the proposed changes, it was stated:

“The basis of the Consortium's objection to the proposed reduction in housing revision is as follows:-

1)

There is now a substantial body of evidence that the 1996 sub-national population and household projections were based upon significant under-estimates of the likely population and households in England at 2016. Since their production the Government and other reputable organisations have produced new projections that show much higher levels of population and households in England for this period. We refer particularly to the 1998-based and 2000-based national projections produced by the Government Actuary. These show a significantly higher population for England, particularly in the key household forming age groups. Although there is no up-to-date household projection for the North West produced by Government sources, it is reasonable to assume that the Region will share at least some of the predicted population and household growth shown in these projections ….

2)

Although economic growth rates may have been relatively low in the Region over the few years since 1998, it cannot be assumed that these low rates will continue over the full period to 2016 or even the next 5 years ….

3)

The Secretary of State has based the proposed reduction in housing provision on achieving vacancy levels of 3% in the existing stock and 2% in the new stock by 2016. The[s]e are very low levels that have never been achieved over the Region in the modern period. The Guidance states that they are policy targets but gives no details of how they are to be secured. Although the Consortium agrees with the policy aspiration of reducing vacancy levels, it does not consider that it is safe to plan future housing provision on the basis that such very low levels will be achieved ….

4)

There is no hard evidence that links incidences of low demand in the existing housing stock with the provision of new housing ….

5)

Unnecessary restrictions on new house building will not achieve more sustainable patterns of development. The effect is likely to be higher house prices which in areas of greater demand will force people with limited means to commute further in order to obtain satisfactory housing ….

6)

… There is a very real danger that the Proposed Changes will create a major housing crisis in the North West over the next few years, which will need to be addressed by urgent actions to release large amounts of housing land in an unco-ordinated and unplanned way ….

7)

House building, including the conversion and refurbishment of existing buildings, is one of the major forces for urban renaissance. There is a very real danger that the lower housing figures set out in the Proposed Changes will significantly reduce the scope for the remodelling of urban neighbourhoods of the type set out in the Core ….

8)

In parts of the North West … there are severe problems arising from population decline including decline and loss of local facilities. House building is one of the primary means by which these areas can pursue policies of population retention. The very low housing figures set out in the Proposed Changes will not allow these problems to be properly addressed.

For these reasons, the Consortium considers that the rates of provision set out in the Draft RPG should be reinstated at the very least ….”

The Secretary of State evidently did not accept the case advanced in those representations. In RPG13 as finally issued by him, policy UR7 and the accompanying table were materially the same as in the Secretary of State's previous draft.

Mr Gilbart submitted that if ever there was an issue requiring scrutiny by the Panel, this was it. The revised figures in policy UR7 and the accompanying table will have very substantial effects. The Panel would have considered (a) whether the evidence justified the Secretary of State's view on growth rates an vacancy rates, (b) the effect of the new material identified by the claimants, and (c) the effect of the revised figures on outcomes for urban regeneration, population retention, etc. As in relation to policy SD4, a witness statement describes the kinds of evidence that the claimants would wish to put forward on policy UR7 if the public examination were re-opened.

For the Secretary of State, Mr Brown submitted that there had been detailed discussion of this issue before the Panel, with evidence either way on whether to use the 1996 projections or higher figures. The Panel described its recommended approach as "aspirational" but "pragmatic". This was a lukewarm conclusion and there was no reason why the Secretary of State should not take a different view. He explained the reasons for taking a different view and received detailed written representations on his proposals. Here too there was no reason why the claimants should not have produced, as part of their representations, the evidence that they say they would adduce if the public examination were re-opened. The Secretary of State was entitled to reach his decision on the final version of RPG13 on the basis of the written representations received and without reopening the public examination or holding a meeting or other additional procedure.

Here too I accept Mr Brown's submissions. Plainly the level of housing provision was an important issue. But it had been the subject of substantial debate before the Panel and the Secretary of State was entitled to take a different view on the appropriate level of provision from that taken by the Panel. The claimants' objections could properly be made by way of written representations. They made such representations, and they cannot gain assistance from arguments or evidence that were not included or referred to in those representations. There is no basis for inferring that the Secretary of State failed to take into consideration the representations that were made. Again he was entitled to take the view that he had sufficient information to decide on the final form of the policy without reopening the public examination or having any other form of additional procedure. And again there is no irrationality challenge and none could sensibly be advanced.

In relation to this policy, too, the main arguments on breach of legitimate expectation, departure from policy and procedural unfairness are considered in the main body of the judgment.

The original draft RPG contained a policy numbered CS1 on economy in the use of land. It provided in material part that:

“Development Plans should adopt the following sequential approach to meeting development needs, taking account of local circumstances, the characteristics of particular land uses, and the locational principles set out in policies SD1-5:

•

the effective use of existing buildings and infrastructure, including the re-use or conversion of empty buildings;

•

the use of previously-developed land, particularly that which is accessible by public transport, walking or cycling; and then

•

the development of previously undeveloped land, where this avoids areas of important open space, is well-located in relation to houses, jobs and other services and infrastructure and is or can be made accessible by public transport, walking or cycling.”

The Panel supported the policy though it recommended some detailed amendments.

In the draft RPG issued by the Secretary of State following consideration of the Panel's report, policy CS1 was renumbered DP1 and was amended in line with the Panel's recommendations. The material part of policy DP1 then read:

“Development plans should adopt the following sequential approach to meeting development needs, taking account of local circumstances, the characteristics of particular land uses, and the Spatial Development Framework:

(i)

the effective use of existing buildings and infrastructure within urban areas, including the re-use or conversion of empty buildings (if they are sound and worthy of re-use, and/or of historic interest) - particularly those which are accessible by way of public transport, walking or cycling;

(ii)

the use of previously-developed land, particularly that which is accessible by public transport, walking or cycling; and then

(iii)

the development of previously undeveloped land, where this avoids areas of important open space, is well-located in relation to houses, jobs and other services and infrastructure and is or can be made accessible by public transport, walking or cycling.”

The claimants, through HLC, objected to the proposed policy, contending that the sequential approach set out in it did not reflect national policy and that no or inadequate reasons were given for this departure. One of the numerous points made in the detailed argument in support of that objection was that "[t]he proposal to give preference to the re-use of existing buildings over the re-use of previously developed land would not assist the overall objective of urban renaissance". It was not, however, contended that the policy conflicted with policy UR4 or with policy UR8.

Policy DP1 was retained in materially the same form in RPG13 as finally issued by the Secretary of State.

The case now advanced by the claimants, that there is an irrational inconsistency between policy DP1 and policies UR4 and UR8, is considered and rejected in the main body of the judgment.