Westgate Partnership v Oxford City Council

J U D G M E N T

1. MR JUSTICE HARRISON: These are two applications made under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash a decision of the First Secretary of State dated 26th September 2002 refusing to grant planning permission for a mixed use development including retail, residential, office, bus hub and associated development at the Westgate Centre and land bounded by St Ebbes Street, Old Greyfriars Street, Thames Street, Norfolk Street and Castle Street, Oxford. The claimant on application CO/5081/2002, the Westgate Partnership, was the applicant for planning permission. The claimant on the other application, CO/5093/2002, Oxford City Council, whom I will refer as "the council", is the local planning authority and also the freehold land owner of the site. I hope that it will not be taken as a discourtesy if I refer to the First Secretary of State simply as "the Secretary of State" in this judgment.

2. There were, in fact, three applications for planning permission which were refused by the Secretary of State. One was for outline planning permission for the following proposed development:

"Mixed-use development involving demolition and redevelopment of the existing multi-storey and surface level car park, alteration, refurbishment and part redevelopment of the existing Westgate Centre and erection of up to 39,000 square metres of new and part replacement floorspace within use classes A1, A2 and A3; residential floorspace; up to 1,240 square metres of replacement office space, bus hub, cycle storage facility, underground replacement car parking; resurfacing and environmental improvements to Bonn Square; associated highway access and landscape works; and other associated developments and ancillary uses, including public toilets and baby change facilities, shop mobility, playgroup, security and operational premises and mall space."

The other two applications were for full planning permission for temporary car and coach parking facilities on nearby sites. They were, in effect, ancillary to the outline application.

3. In September 2000 the council resolved that it was minded to grant the applications. On 16th February 2001 the Secretary of State called in the applications under section 77 of the 1990 Act for his own determination. In his call-in letter, he stated that he was of the opinion that he ought to decide the applications himself because of the architectural design issues raised in relation to the sensitive location of the sites in the City of Oxford. In the call-in letter, the Secretary of State said he wished to be informed about a number of matters, which included the development plan, the need for the development, the sequential approach under PPG6, the effect on neighbouring centres, considerations relating to PPG13, car parking and traffic issues, the design principles adopted in relation to the site and its wider context, including the effect on the Oxford skyline, and the effect of the proposed development on the character and appearance of the adjacent conservation area, and whether it would be preserved or enhanced.

4. A public inquiry was held between 20th and 30th November 2001 before an inspector, Mr Baker, and an assessor, Mr Brown, who is an architect. The inspector, having considered his assessor's report, recommended to the Secretary of State that planning permission should be granted, with the exception of an office block proposed at the junction of Old Greyfriars Street and Turn Again Lane.

5. The Secretary of State decided that all three applications should be refused for the reasons given in his decision letter. It is that decision letter which is impugned by the claimants in these two applications. One can understand them feeling aggrieved at the decision because the council, as the local planning authority, was in favour of the development, and the inspector had recommended in favour of it. The Secretary of State, of course, was entitled to disagree with his inspector's recommendation. The question is whether the Secretary of State, in refusing planning permission, was acting outside his powers under the 1990 Act, or whether any of the relevant requirements of the Act, or the rules and regulations made under it, had not been complied with, resulting in substantial prejudice to the claimants.

6. The grounds of challenge put forward by both claimants are, broadly speaking, the same. Those put forward on behalf of the council were, in effect, included within those put forward on behalf of the Westgate Partnership, although Mr Druce, who appeared on behalf of the council, made some additional points.

7. The first ground of challenge is that the Secretary of State failed to determine whether the application was in accordance with the development plan, or, if he did determine that it was not in accordance with the development plan, that he failed to give any adequate reasons for such a decision, or for disagreeing with his inspector's conclusion that the application was in overall accordance with the development plan.

8. Before I turn to the relevant parts of the inspector's report and the Secretary of State's decision letter on this aspect, I should first remind myself that section 54A of the 1990 Act provides:

" Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."

9. The inspector's conclusions relating to the shopping issue are contained in paragraphs 314 to 321 of his report. In those paragraphs he deals with a number of policies of the development plan (consisting of the Structure Plan and the Local Plan) dealing with shopping, concluding in paragraph 321 that:

"Taken overall it is my view that the scheme accords with development plan policy on shopping, indeed in many respects it would positively advance its objectives."

10. When giving his overall conclusions on the development plan, between paragraphs 351 and 356, the inspector concluded in paragraph 356 by saying:

"There is clearly a balance to be struck between the benefits and drawbacks. Provided sincere attempts were to resolve the latter, my opinion is that the scheme accords with the development plan taken as a whole."

11. The Secretary of State dealt with the development plan in paragraphs 3 and 4 of his decision letter. In paragraph 4 of the decision letter, the Secretary of State stated as follows:

"The Secretary of State agrees with the Inspector that the Westgate proposals appear to be generally in accordance with Structure Plan policy in providing further comparison and specialist shopping in Oxford. However, he notes that the Plan identifies the country towns as preferred locations for development and that although the Local Plan stresses the role of Oxford as the principal commercial centre in Oxfordshire, it does not mention major shopping expansion of the type envisaged in this development; rather the emphasis will remain on improving quality (IR314/315). The Local Plan envisaged a much more modest development of the land south of the existing Westgate Centre and although it is noted that the City Council consider that, in this respect, the Plan is out of date, the review of the Local Plan is still at a very early stage and the consultation papers which have been produced in connection with the review differ in their estimates as to the amount of retail space that is appropriate (IR317). The Secretary of State considers therefore that very little weight can be attached to the emerging local plan."

12. Thereafter the Secretary of State dealt with PPG6, PPG13, and design and townscape issues, to which I will have to return, but in paragraph 9 of the decision letter he gave his conclusion. For the purposes of dealing with the development plan, it is only the last sentence of that paragraph which is relevant but, as the rest of it is relevant to some other issues, I read the whole paragraph:

"The Secretary of State accepts the principle of the refurbishment of the Westgate Centre and the redevelopment of at least part of the remainder of the site for the uses proposed, in particular the need to provide improved retail facilities, additional housing and the need for better transport provision. However, having weighed up all the issues, the Secretary of State has concluded that the proposals, by virtue of their scale and design, would cause harm to the historic heart of Oxford and would not preserve or enhance the character and appearance of the Central Conservation Area. He accepts that there are benefits in terms of some improvement to the appearance of the site and to Bonn Square, provision of a bus hub and removal of buses from Queen Street. He has also had regard to the fact that English Heritage does not object to the scheme and that local opposition has been fairly limited. However, he does not consider that these factors outweigh the harm to the Conservation Area. In his view there are insufficient material considerations that would indicate that he should determine the application other than in accordance with the development plan."

13. Mr Roots QC, who appeared on behalf of the Westgate Partnership, said that the Secretary of State had not expressly found whether or not the proposed development is in accordance with the development plan. I disagree. That last sentence that I have just read, although admittedly rather convoluted and not expressed as clearly as it could be, makes it, in my view, clear to an informed reader that its conclusion is that the development is not in accordance with the development plan, and that there are insufficient material considerations to justify granting planning permission for such a development.

14. I accept Ms Lieven's submission, made on behalf of the Secretary of State, that what the Secretary of State said in paragraph 4 of the decision letter about the Structure Plan and Local Plan cannot be said to be incorrect. Structure Plan Policy TC1 states that further shopping provision will be permitted in Oxford and Banbury. The Secretary of State was therefore correct in saying that the proposed development was generally in accordance with Structure Plan policy in providing further comparison and specialist shopping in Oxford. Structure Plan Policy TC2 states that the principal locations for major new shopping development will be in four named centres including Banbury, but not including Oxford. Those are the country towns which the Secretary of State said the Structure Plan identified as locations for development. Thus far, what the Secretary of State has said cannot, in my view, be faulted.

15. He then turned to the Local Plan, making the point that it does not mention major shopping expansion of the type envisaged in this application, but that it envisages a much more modest development. That is, in effect, a reference to Appendix M of the Local Plan, which was referred to in Policy COM7B, the specific policy identifying this site for retail development. Appendix M, giving guidelines, stated that it was estimated that some 6,500 square metres of total additional floorspace could be accommodated on the site. Ms Lieven pointed out that this proposed development would result in 32,324 square metres of additional retail floorspace. However, the 6,500 square metres mentioned in Appendix M does not include the area of the multi-storey car park or the additional three units in the existing Westgate Centre. It is not, therefore, a like for like comparison, so it is not really possible to judge one way or the other whether the Secretary of State was right in remarking that the Local Plan envisaged a much more modest development. I suspect, though, that it probably did.

16. Ms Lieven accepted that the Local Plan is not prescriptive in so far as it does not prohibit a development of this size. She suggested that it was, in effect, neutral, and that the Secretary of State was therefore entitled not to come to any further conclusion so far as the development plan is concerned. She said that the decision-maker does not have to reach a conclusion on every aspect of the Structure Plan or the Local Plan. I would accept that as a general proposition, but the Secretary of State was here faced with the firm conclusion of the inspector that the scheme accorded with the development plan policy on shopping, and that, in many respects, it would positively advance its objectives.

17. The Secretary of State does not say whether or not he agrees with that important conclusion. In a situation where he is disagreeing with his inspector's recommendation and where the balancing of benefits against disadvantages is central to the decision, he should, in my view, have said whether or not he agreed with that conclusion of his inspector. If he agreed with it, it would be a significant benefit to be put in the balance. If he disagreed with it, he would have to give his reasons for doing so. In fact, the Secretary of State made no reference at all to it in his decision letter. That, in my view, is a material failure.

18. The second ground of challenge relates to Planning Policy Guidance Note 6 (PPG6). There are two different aspects arising under this heading. The first relates to the sequential test under PPG6, and whether this is a city centre or an edge of centre site. The second relates to the issue of retail need and economic impact on existing centres.

19. I deal first with the aspect relating to the sequential test. Paragraph 11 of PPG6 describes what is meant by the sequential test: namely, that the first preference should be for town centre sites, followed by edge of centre sites, district and local centres, and then out of centre sites in locations accessible by a choice of means of transport. Edge of centre is defined for shopping purposes as "a location within easy walking distance (i.e. 200-300 metres) of the primary shopping area". Town centre is defined in PPG6 in the following way:

"The term 'town centre' is used generally to cover city, town and traditional suburban centres, which provide a broad range of facilities and services and which fulfil a function as a focus for both the community and for public transport. It excludes small parades of shops of purely local significance. The policy guidance in this PPG should be interpreted in a way that relates reasonably to the particular size of town centre concerned."

20. The relevant paragraph of the inspector's conclusion relating to this aspect of the matter is paragraph 319, which states as follows:

"Policy TC4 of the Structure Plan deals with PPG6 criteria and the sequential approach. Part of the site is within the primary retail frontage identified in the Local Plan. The City Edge block would be some 200m from the primary shopping frontage and so, at worst, it would be considered an edge of centre site (PPG6 Annex A). It is the only feasible site for a mixed development of significant size and certainly it is the only such available [site] now. Bearing in mind that there are no other sites available I find that the location meets the sequential test criteria of TC4 which accurately echoes PPG6. In my view, the site should be considered as being in the City centre."

21. When dealing with this matter in his decision letter, the Secretary of State said at paragraph 5:

"The Secretary of State notes the Inspector's view that the location of the application site meets the sequential test in PPG6 concerning the preference for retail development to be sited in town centres and that he does not share the Oxford Preservation Trust's misgivings about the possible effect of the proposals on the future economic health of the centre of Oxford. However, the Secretary of State does not agree that the site as a whole can be considered as being within the city centre (IR319). He considers that certainly the existing service level car park (proposed City Edge block) should be regarded more appropriately as being edge-of-centre. The Secretary of State has reservations not only about the economic effect of the scale of the proposals on Oxford centre and other nearby centres but also the need for such a large development and its appropriateness so close to the heart of this historic university city. He agrees with the Inspector that Oxford has many strengths and it is for this reason that he has doubts about the need to attract more people to Oxford or to contribute to its liveliness (IR320). In this context he agrees with the Inspector that the City is thriving and notes his comment that there is no urgency to implement the scheme now (IR357). Therefore, the Secretary of State does not accept the Inspector's conclusions concerning the disposition and scale of uses."

22. Mr Roots submitted that the Secretary of State's conclusion that he did not agree that the site as a whole could be considered as being within the city centre was perverse. He did that by reference to Local Plan Policies COM1 and COM7, both of which are dealing with the city centre, and the inset map on the proposals map, which he said showed the area of the city centre as referred to in those policies. In fact, the proposals map does not show a city centre area for shopping purposes as such. It shows one for commercial purposes, to which Policy COM1 applies, but commercial uses will include very many different other uses besides shopping. I do not accept that the inset map even purports to show what would be the city centre for the purposes of the sequential test under PPG6. In my view, the Secretary of State was entitled to conclude that the proposed City Edge block should be regarded more appropriately as being edge of centre. It is, as the inspector found, some 200 metres from the primary shopping frontage and therefore comes within the definition of edge of centre in PPG6.

23. Mr Roots' other point on this aspect, however, seems to me to have more force, namely that the Secretary of State failed to determine whether the proposed development was in accordance with the sequential test in PPG6. The inspector expressly concluded that the location did meet the sequential test. The Secretary of State simply noted the inspector's conclusion, but did not say whether or not he agreed with it. The fact that the Secretary of State concluded that a part of the site was edge of centre does not mean that the sequential test was not satisfied, particularly in the light of the inspector's conclusion that there were no other sites available. In my view, this was another aspect upon which the Secretary of State should have said whether or not he accepted the inspector's conclusion. If he agreed with it, it would constitute significant conformity with PPG6. If he disagreed with it, he would have to give his reasons for doing so. The fact that he decided that part of the site was edge of centre cannot in itself be a reason for disagreeing with the inspector's conclusion that the sequential test was satisfied. I do not consider that merely noting the inspector's conclusion was sufficient. He should have said whether he agreed with it or not, and he failed to do so. Once again, a potential benefit in the sense of conformity with policy has not ostensibly been put into the balance.

24. I turn next to the other aspect of the PPG6 issue, namely the way the Secretary of State dealt with the issue of need and the economic effect on other centres. It is clear from the inspector's recital of the case put forward at the enquiry that the Westgate Partnership led very full and exhaustive evidence on the issue of retail need. Indeed, it is recorded that their case was that, if the Secretary of State were to conclude that the proposal was not in accordance with the development plan, need was one of the benefits that should outweigh that conflict. The same point was made by the planning witness called by the council. Indeed, need was one of the issues specified for consideration by the Secretary of State in his call-in letter.

25. I am told that the evidence relating to the retail need for the development and its economic impact on Oxford city centre and other centres was effectively unchallenged. In paragraph 321 of his report, the inspector said:

"The need and capacity identified in the Economic Assessment, in my view, justify the new development in this location."

In paragraph 352 he said:

"There is clear and largely unchallenged quantitative and qualitative evidence that Oxford's traditional centre would not be harmed."

26. In paragraph 5 of his decision letter, the Secretary of State said that he had reservations about the economic effect of the scale of the proposals on Oxford centre and other nearby centres. Earlier in that paragraph he referred to the inspector not sharing the misgivings of the Oxford Preservation Trust about the possible effect of the proposals on the future economic health of the centre of Oxford, but that, I am told, is a mistake because the Trust, who were the main objectors to the proposal, did not take any point about the economic effects of the proposal. Mr Roots submitted that there was simply no evidence on which the Secretary of State could base any reservations on the economic effect of the development. None have been suggested by Ms Lieven on behalf of the Secretary of State. I accept Mr Roots' submission.

27. The Secretary of State's conclusion that he had reservations about the economic effect of the development on Oxford town centre and other nearby centres was not based on any evidence. Indeed, it is contrary to the unchallenged evidence given at the enquiry, and contrary to the inspector's conclusion in relation to Oxford city centre. Furthermore, no reasons are given to explain the Secretary of State's reservations, nor are reasons given for disagreeing with the inspector's conclusion.

28. I turn, then, to the issue of retail need. In paragraph 5 of the decision letter, the Secretary of State said that he had reservations about the need for such a large development. He went on to agree with the inspector that Oxford city was thriving, and he noted the inspector's comment that there was no urgency to implement the scheme now. That latter aspect was derived from the inspector's conclusion at paragraph 357 that there was no great urgency to implement the scheme now because the city is thriving and the need to expand shopping is long term rather than immediate. That conclusion was relied upon by Ms Lieven as showing that the inspector had rejected the applicant's case of urgency to ensure that the city does not decline. She submitted that the decision letter, read as a whole, makes it clear that the Secretary of State was not convinced of the need for that amount of retail floorspace, nor for the urgency of its provision. She said that the key point was that it could not outweigh the fundamental conservation objection.

29. Whilst I understand the point being made on the issue of urgency, although in fact the Secretary of State merely noted the inspector's conclusion on that aspect without saying whether he agreed with it or not, the fact of the matter is that the Secretary of State failed to come to any conclusion on the issue of the need for the amount and quality of retail floorspace proposed. It was an important part of the applicant's case, in respect of which they had adduced a great deal of evidence, which is all summarised in the inspector's report and accepted by him. In my view, it behoved the Secretary of State to deal with that aspect in a meaningful way, rather than just to say that he had reservations about it. He failed to give reasons why he disagreed with his inspector's conclusion in paragraph 321 of his report, and he failed to come to a conclusion on a matter, namely the retail benefits of the proposed development which the applicants had put forward in case the Secretary of State were to decide that the development was not in accordance with the development plan. He therefore failed to reach a conclusion on a matter which was of prime importance to the applicant's case, and which, if he had agreed with his inspector's conclusion, would have constituted an important benefit to weigh in the balance against the conservation objection.

30. Mr Druce referred to the speech of Lord Lloyd in the case of Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 71 P & CR 309 at page 314, when he said:

"What the Secretary of State must do is to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the 'principle important controversial issues'."

Mr Druce submitted that the issue of retail benefit was a principal important controversial issue upon which the Secretary of State failed to reach a conclusion.

31. Ms Lieven referred me to the judgment of Evans LJ in the case of MJT Securities Ltd v Secretary of State for the Environment[1998] JPL 139, when he said at the bottom of page 144:

"What should be noted, however, is that the Inspector is not obliged to decide all the issues which are raised before him. It may not be necessary for him to decide all the issues in order to decide whether planning permission should be granted. An obvious example is provided in the present case: if he had decided the question of need against the Applicants, the issues as to planning merits would no longer be relevant to his decision. No-one suggests that the statutory duty to give reasons extends to issues which in the event are not relevant in this sense to the result of the appeal. The duty established by the House of Lords in Bolton No 2, in my judgment, is to set out the major steps in the Inspector's reasoning which have led to his overall decision on the appeal, and this makes it necessary for him to state his conclusions on the principal issues which were raised for decision by him ('controversial') and which in the result it was necessary for him to decide. Moreover, he need not refer to 'every material consideration, however insignificant', but only to 'the main issues'."

32. Ms Lieven thus submitted that the Secretary of State did not have to give reasons which are not relevant to the result of the appeal. He only has to give reasons on issues which it is necessary for him to decide. Taken to its logical conclusion, that would mean that the Secretary of State only has to reach a conclusion on the conservation issue and nothing else. I accept Mr Druce's submission that this issue of retail benefit was a principal important controversial issue on which the Secretary of State should have reached a conclusion. Until he had reached a conclusion on that, and on other principal controversial issues, he could not be in a position to reach a judgment whether they are outweighed by the conservation objection. It is, as Mr Roots said, a question of balance, and it is not apparent from the terms of the decision letter that a proper balancing exercise has been carried out. If the Secretary of State had reached conclusions relating to the benefits and the disadvantages, and then reached the conclusion that the conservation objection outweighed the benefits, then his decision would have been unassailable, but he did not do that.

33. I turn next to the topic described in paragraph 7 of the Secretary of State's decision letter as "Design and Townscape". Paragraph 7 of the decision letter stated:

"Continuing on the design and townscape scheme, the Secretary of State recognizes the attractions of an enclosed shopping mall or street (Bridge Street) from a commercial point of view and that this solution largely determines the form of development to the south of the existing Westgate Centre. However, the combined effect of the fall in ground levels and the predominantly uniform height of the overall development, would in the Secretary of State's view create a massive and overbearing development which is out of scale and sympathy with its surroundings. In this context he notes that Norfolk Place and City Edge blocks would exceed the 18.2 metre height limit advocated by Policy EN24 in the Local Plan (AR59). He is of the opinion that the proposals, particularly the City Edge block, would have a detrimental effect on vistas both from within Oxford and from outside or on the edge of Oxford. The Secretary of State agrees with the Assessor and does not consider that a 3.5 metre set back of the City Edge block at a height of 13 metres would alleviate his concerns regarding the height and visual impact of this element of the proposals (AR76). He also agrees with the Assessor that a more gradual transition in scale is required with buildings increasing in height from Thames Street to the city centre and notes that such an approach is supported by advice in 'By Design' (AR66)."

34. In paragraph 8, the Secretary of State went on to deal with the inspector's and assessor's conclusions relating to the proposed office development adjacent to a listed terrace in Turn Again Lane, but he described those objections as being peripheral to the more fundamental objections to the scheme, by which I assume he is referring to the objections referred to in paragraph 7. Later in paragraph 8 he refers to the concern of the inspector and the assessor over the treatment of street frontages as being subordinated by the more fundamental objections outlined in paragraph 7.

35. Finally, in paragraph 10 of the decision letter, when dealing with the inspector's suggestion to allow revised proposals with a view to reopening the enquiry, he said that he had decided that the proposals should be refused because he considered the objections, particularly with regard to the existing surface level car parking/City Edge block, to be so fundamental. There is no doubt, therefore, that the Secretary of State considered that his objection to the scale and design of the proposed development was fundamental to his decision. That is a matter which, understandably, is relied upon by Ms Lieven.

36. Mr Roots submits that the Secretary of State's reliance on paragraph 59 of the assessor's report is selective, out of context, and fails to acknowledge relevant favourable conclusions of the assessor. Furthermore, he says, the Secretary of State makes no reference to the inspector's conclusion as to the weight to be attached to this objection.

37. To understand those submissions, it is necessary to refer to some aspects of the assessor's report. In his conclusions relating to design principles, the assessor concludes in paragraph 25 that the design principles chosen would be appropriate to Oxford. In paragraphs 34 to 38 the inspector gives his conclusions relating to the impact of the proposed development on the Oxford skyline. In paragraph 34 he concluded that the generally lower profile of the proposed development and its muted colours would result in a less conspicuous development, fitting harmoniously with the general ambience of the city. He also thought that the "Gateway Tower" to Norfolk Place would be a pleasing addition to the Oxford skyline. He concluded that the development would be most clearly seen from Castle Mound, Carfax Tower and the Tower of St Mary's University Church. He concluded that the view from Castle Mound would be acceptable and might even be improved by obscuring a line of pylons intruding on the existing horizon. Having considered the vistas from Carfax Tower and St Mary's Church, he was of the opinion that the development would be located well below the countryside horizon and would fit easily within the townscape of the city. In paragraph 38 he concluded:

"In the context of the impact of the application proposal on the Oxford skyline when viewed from both outside the city and also from publicly accessible viewpoints, I am of the opinion that it would accord with the main thrust and/or relevant criteria of Structure Plan Policy EN9, and Local Plan Policies EN24, EN25 and EN26."

Those are plainly important conclusions in favour of this development.

38. I come, then, to paragraph 59, to which the Secretary of State referred in paragraph 7 of his decision letter. Paragraph 59 of the assessor's report stated:

"Whilst I consider street frontages in more detail later, in principle I am of the opinion that the glazed extension to the Library frontage and the re-design/re-cladding of both Commercial Core and City Wall would improve the general townscape of this part of Oxford City centre (paragraphs 41 and 42). With regard to the overall height of these two 'character areas', both remain substantially below the 18.2 metre height advocated by Local Plan Policy EN24. With the exception of a small number of three storey high residential units, the majority of Street Block also accords with this height. However, the 'gateway tower' and glazed roof to Norfolk Place would rise above 18.2 metres, as would elements of City Edge including the standing seam metal roof and staircase tours (paragraphs 43 and 45)."

39. It can be seen that the Secretary of State's reference to paragraph 59 of the assessor's report is a reference solely to the last sentence of that paragraph. Both Mr Roots and Mr Druce submitted that that sentence is referring to the height restriction of 18.2 metres in Policy EN24 of the Local Plan, which is dealing with the skyline, which is a matter on which the assessor had reached a favourable conclusion, and that the Secretary of State had therefore picked up on a point where the assessor had dealt with it out of context. Mr Druce submitted that the Secretary of State had erred in law because he had misunderstood Policy EN24 by relying on it for conservation issues rather than skyline issues with which it deals.

40. It is necessary to read Policy EN24. It is in a section of the Local Plan dealing with Oxford's skyline, and the preceding paragraph in the text deals with the skyline. The terms of the policy, however, are as follows:

"The Council will not normally grant planning permission for buildings or the extension of existing buildings within a 1,200 metre radius of Carfax which exceed 18.2m (60ft) in height or ordnance datum (height above sea level) 79.3m (260ft)(which ever is the lower) except for minor elements of no great bulk. A lesser height may be considered more appropriate for buildings which need to fit into the existing townscape. If existing buildings (at, or in excess of, these limits) are demolished and redeveloped then consideration will be given to whether rebuilding to their previous height is acceptable in terms of the contribution made to the appearance of the existing townscape and skyline."

41. Although it is clear that the policy is primarily dealing with Oxford's skyline, it is also clear from the terms of the policy that it is dealing also with the effect on the townscape. That is clear from the terms of the policy itself. The Secretary of State, in dealing with this aspect, dealt with it in the section of his decision letter which was dealing with townscape. Although I recognise the force of the claimant's point relating to Policy EN24, I am not satisfied that it would be appropriate to conclude that the Secretary of State had misunderstood that policy, nor am I satisfied that the Secretary of State took the assessor's objections out of context.

42. In paragraph 63 of his report, the assessor concluded that a building of such a height would be visually dominant and intrusive when seen from Oxpens Road/Thames Street, which forms the southern bypass to the city centre. In paragraph 64 he referred to the pleasing views from the west over the application site to such structures as Tom Tower, St Aldgates and the Cathedral, all in the conservation area. He concluded that those vistas would be eliminated because of the height of the two southern blocks, Street Block and City Edge block. In paragraph 66, which is referred to in paragraph 7 of the Secretary of State's decision letter, the assessor concluded that a more sympathetic transition in scale is required for the proposed development, with buildings increasing in height from Thames Street up to the city centre, a view with which the Secretary of State agreed.

43. Finally, tracing this subject through the relevant documents, it is necessary to refer to what the inspector said about this aspect of the matter in paragraphs 338 and 339 of his report:

"338. Mr Brown's main objection in this regard relates to medium distance views of the conservation area and listed buildings from street level in Oxpens Road/Thames Street [135, 142, 145][RB63-71]. In terms of the total potential effect on Oxford's setting and the variety of possible view points, this is a relatively narrow objection. It concerns the conservation area and listed buildings on the rise behind the site, including Tom Tower (TWP23 Fig 5 is an approximation to the viewpoint concerned). Any buildings on the site would be likely to have a masking effect, though clearly that effect would be greater the higher they were. In addition, these views could also be obscured by buildings on the intervening development site at Abbey Place (TWP23 shows a view across this site) [RB46]. A significant reduction in the height of the City Edge block would be required in order to retain this view. The objection should also be weighed against any benefit to be derived from a gateway or statement building on the site [335, 158].

"339. Therefore, while agreeing with this point, I believe its importance in the overall consideration of development plan conservation policy should not be overestimated."

44. Mr Roots makes the point that the Secretary of State failed to make any reference to those conclusions of the inspector relating to that aspect of the assessor's report. That is undoubtedly correct. Whilst the inspector is agreeing with the assessor, he is giving his reasons why too much weight should not be attached to the objection. That assessment by someone who, like the assessor, had actually been there and seen what was being talked about is something which one would normally have expected the Secretary of State to deal with in his decision letter, giving his reasons for disagreeing with the inspector as to the weight to be attached. However, in this particular case I would not hold that against the Secretary of State because it is, in my view, quite clear implicitly from the Secretary of State's conclusion on the townscape or conservation issue that he is disagreeing with the inspector's conclusion as to the weight to be attached to that matter having regard to his conclusions that the development was a massive and overbearing development. All I do say on that aspect is that it is another example where, as a matter of fact, the Secretary of State has not dealt with a conclusion of the inspector which is favourable to the applicants.

45. In paragraph 7 of the decision letter, which I have already quoted, the Secretary of State stated that he was of the opinion that the proposals, particularly the City Edge block, would have a detrimental effect on vistas "both from within Oxford and from outside or on the edge of Oxford". Whilst there was evidence on which the Secretary of State could come to that conclusion in relation to vistas from within Oxford in the view from Oxpens Road/Thames Street, there was no evidence for his conclusion that the proposals would have a detrimental effect on vistas from outside or on the edge of Oxford. That is a conclusion which was reached without evidence and without explanation.

46. There was a subsidiary point taken by Mr Roots about the Secretary of State's rejection of the inspector's suggestion of inviting revised proposals, but I am satisfied that he was entitled to come to that conclusion.

47. Some of the conclusions that I have reached are errors of law rather than procedural errors, so it is not necessary for the claimants to show prejudice. But in so far as it is necessary for them to show substantial prejudice in respect of some of the conclusions that I have reached, I am satisfied that they have been substantially prejudiced. In particular, the council are prejudiced in not knowing how to progress this aspect of the review of their Local Plan.

48. I have also considered whether I should refuse to quash the Secretary of State's decision on the ground that he would simply reach the same decision anyway if he were to reconsider this matter in view of the strong way in which he expressed what he called the "fundamental conservation objection". I am satisfied, however, that it would be wrong to refuse relief in view of the deficiencies that I have identified in the decision letter. A fresh decision weighing conclusions on the principal important controversial issues may not necessarily lead to the same decision. In any event, it is an exercise which as a matter of law should be performed. It follows, therefore, for the reasons that I have given, that these applications will be allowed and that the decision will be quashed.

49. MR ROOTS: My Lord, I would therefore ask, in the light of your Lordship's judgment, that the decision in response to my clients' claim, CO/5081/2002, be quashed, with costs.

50. MR JUSTICE HARRISON: As I said, both applications are allowed and the decision is quashed.

51. MR DRUCE: My Lord, I also have an application for the claimants' costs in action number CO/5093/2002.

52. MR JUSTICE HARRISON: Mr Roots, did I hear you say anything about costs yourself?

53. MR ROOTS: I applied for costs.

54. MR JUSTICE HARRISON: I am so sorry, I did not catch it.

55. MR ROOTS: I asked for an order quashing the decision, with costs.

56. MS LIEVEN: My Lord, I certainly do not dispute Mr Roots' costs. I could not do so. But, my Lord, so far as Oxford City Council's costs are concerned, although there are effectively two applications here, in my submission in reality there was one case. I am not sure why they decided to bring separate challenges, to be frank. As your Lordship indicated at the beginning, all the points taken by Mr Druce were, in effect, subsumed within the Westgate Partnership's case, and there was, in my submission, no need for the council to be separately represented.

57. I anticipate two points to be made against me. One is that the council here were not just LPA, they were also landowner. But, my Lord, in my submission, that makes no difference. Indeed, as landowner, they were merely part of the development partnership, and as the LPA, Mr Druce has submitted that there was the extra prejudice to the Local Plan, but there can be no possible doubt that if Mr Roots had been here on his own for the Westgate Partnership, he could have made that point as well. So, my Lord, although the form of the litigation has taken two separate cases, in my submission the substance of the litigation is one. There is really no reason why my client should be burdened with two sets of costs.

58. Just finally, my Lord, I am, of course, not making any comment on the fact that Mr Druce made a helpful contribution to the case, but that cannot guide the question as to whether it is appropriate for the court to order two sets of costs. My Lord, in my submission, the two separate cases really make absolutely no difference to the general principle, which is that in section 288 applications there should normally only be one set of costs. My Lord, I do not think I am going to make the point any better by saying any more.

59. MR JUSTICE HARRISON: Thank you very much.

60. MR DRUCE: It is an oddity that the Secretary of State accepts that one set of costs should be paid, but that they should be Mr Roots'. There is no good distinction between paying the developer's costs in this case on the one hand, and not paying the landowner and local planning authority its costs on the other. This is not the classic sort of case where, in relation to the Secretary of State's decision, the planning authority appear as an interested party on the coat tails of the developer. It is a very different case. Your Lordship has upheld my submission that the planning authority was prejudiced substantially in being unable to advance this issue in its Local Plan review. That is a distinct interest separate from the interests of the developer, one that entitles us to come. We have our own action. It is a separate action, and costs should follow that event.

61. MS LIEVEN: My Lord, can I make one brief additional point, which is that on the logic of my learned friend's argument, maybe what you should award is 50 per cent of each costs. That would be the other way of dividing the matter up. My Lord, I express no view as to which is more appropriate. If Oxford really have an equal interest, then perhaps they should have 50 per cent of the costs. But I do say, my Lord, that where there are two litigants whose arguments completely overlap and who are attacking the same decision -- we are not taking about parallel decisions here, we are talking about one decision -- there is absolutely no reason why two sets of costs should be awarded.

62. MR JUSTICE HARRISON: Mr Roots, do you have anything to say about the suggestion that both of you, you and Mr Druce, should only get 50 per cent of your costs to make up the total?

63. MR ROOTS: I think the most interesting thing is that Ms Lieven's first reaction was that we should get our costs.

64. MR JUSTICE HARRISON: You are sticking with that?

65. MR ROOTS: Yes, I stick with that. We are the developer. I hesitate to say that we had the run of the argument; that is the order that we happened to have chosen to go in, and Mr Druce has obviously put his points before your Lordship as to any separate points. But we do have a separate claim in this case. We had a number of substantial arguments which your Lordship has upheld.

66. MR DRUCE: On that last point, I agree entirely. I do not think any point turns on the order in which submissions were made. As you would expect, my Lord, my learned friend Mr Roots and I and discussed informally who should go first. It is, of course, a matter of deference and courtesy to my learned friend that Mr Roots did go first in the event. The fact that the arguments overlap is independent of the point that we have separate interests and separate actions.

67. MS LIEVEN: My Lord, I am sorry to pop up again. I would not want it to be thought that I accepted the Westgate Partnership's costs because Mr Roots went first. I accepted the Westgate Partnership's costs because they were the applicant to the planning permission, and it was their planning permission which was quashed. So it would be wrong to not accept at least a proportion of their costs.

68. MR JUSTICE HARRISON: Costs are a matter within the court's discretion. My order is that the Secretary of State should pay the costs of the Westgate Partnership. So far as the costs of the council are concerned, I do not take it as determinative that there is a separate application by them, and therefore two applications before this court, although it is a matter to take into account. Rather more important in my view is the fact that the council do in this case have a quite separate and sufficient interest in this matter, both as landowner and as local authority, particularly in relation to the question of the review of the Local Plan. Furthermore, although it is not determinative, I should say that I have also been assisted in this case by the submissions of Mr Druce on behalf of the council. For all those reasons, in the exercise of my discretion I will order that the Secretary of State should pay the council's costs.

69. MS LIEVEN: One final matter. I am instructed to ask for leave to appeal. Given the lateness of the hour, I am not going to spend long on this, and your Lordship is extremely familiar with the case. In my submission, there is one central issue, which is the degree to which the First Secretary of State, or indeed any decision maker, has to deal with matters which, at the end of the day, are not determinative of the decision. In my submission, there is some apparent tension -- I put it no higher than that -- between Bolton No 2 and MJT, certainly as Mr Druce put his submissions. You will remember, my Lord, he relied heavily on Bolton No 2 and, as it were, limited MJT, and yet MJT was a subsequent decision. So, my Lord, that is an issue which, in my submission, is worth pursuing to the Court of Appeal, and is clearly arguable as to a circumstance such as this, where in the ultimate chain of reasoning the errors that were identified did not contribute to that final conclusion, and how the reason should be approached in that respect. But, my Lord, I will leave it there.

70. MR JUSTICE HARRISON: Thank you. Do you have anything to say on that, Mr Roots?

71. MR ROOTS: We would say that leave to appeal in this case is not appropriate. Your Lordship has determined the matter entirely on the basis of the particular words that the Secretary of State used in his decision letter that your Lordship has analysed so carefully. So far as tension between Bolton No 2 and MJT is concerned, we would respectfully suggest that there is none, and that MJT, once you understand the facts on which it is based, is an entirely different type of case. Your Lordship may recall that in the part of my submissions dealing with MJT, I mentioned the high quality of the case decided on Greenbelt ground, with some nature conservation points lurking on the side, and if the need case did not get over Greenbelt, that is a situation in which it would not be necessary to go on to nature conservation. But this is a case where all the issues that your Lordship has had to address are ones that go to the overall balance.

72. MR JUSTICE HARRISON: Thank you. Mr Druce?

73. MR DRUCE: On that latter point, my Lord, I see no tension between Bolton No 2 and MJT in the way that it was presented in our submissions, and in the way your Lordship has applied those two judgments. The intention was in relation to how the Secretary of State, through my learned friend's submissions, addressed the matter. It is quite clear that the Court of Appeal in MJT were doing their best to explain what Lord Lloyd had to say in Bolton No 2, and the emphasis that Ms Lieven put on the word "necessary" does not add a gloss different from what Lord Lloyd was saying. The burden is to deal with the principal important controversial issue, and your Lordship has found the Secretary of State failed to do so.

74. MR JUSTICE HARRISON: Thank you. Is there anything you want to say in reply, Ms Lieven? No? I adopt your reasoning, Ms Lieven, in so far as the late hour is concerned, and therefore I simply confine my decision to saying that despite Ms Lieven being as persuasive as she always is, I am afraid this is a case where I do not think it would be appropriate to grant permission to appeal. Thank you very much to all counsel in the case.