CG Claydon Ltd, R (on the application of) v First Secretary Of State & Anor

The claimant is the owner and applicant for planning permission in respect of certain land to the rear of Birchen Grove, Luton ("the Appeal Site"). The second defendant ("the Council") is the Local Planning Authority for the area. On 18th February 2002, the claimant applied to the Council for outline planning permission for residential development and public open space on the Appeal Site ("the appealed application").

The Council failed to determine the appealed application within the requisite period and the claimant appealed to the first defendant ("the First Secretary of State") against that deemed refusal of planning permission pursuant to Section 78 of the Town and Country Planning Act 1990 ("the 1990 Act").

On 16th October 2002, the claimant submitted a further and identical application for outline planning permission in respect of the Appeal Site ("the duplicate application"). The duplicate application was to be considered by members of the Council's Development Committee ("the Planning Committee") on 19th March 2003. However, it appears that the duplicate application was withdrawn from consideration at that meeting because the Council's officers wished to check certain legal matters. The item was placed on the agenda for consideration at the Planning Committee's next meeting, which was due to be held on 9th April 2003.

The officers' reports prepared for both the 19th March and 9th April meetings were supportive of the duplicate application and recommended its approval as a departure from the Borough Plan. However, on 9th April 2003, consideration of the duplicate application was deferred once more for further consideration by the officers, and it still remains undetermined by the Planning Committee to date.

On 16th April 2003, the Planning Committee considered the appealed application in order to give an indication of what the members' decision would have been had they had the opportunity to determine the application prior to its having been taken to appeal. Having considered the appealed application, the Planning Committee resolved as follows:

"Resolved: That the Planning Inspectorate and the appellants be advised as follows:-

"(i)

That, had the Local Planning Authority had the opportunity to determine the appealed application, it would have refused the proposals for the following reasons:

"(01)

The proposal would result in the development of land which is identified on the Proposals Map of the Adopted Borough of Luton Local Plan as allotments without consideration having been given to replacement facilities in an appropriate location which is as accessible to the public. It is, therefore, contrary to Policy OS5 'Allotments' of the Borough of Luton Local Plan.

"(02)

The proposed development would result in the loss of an existing area of open space for which no appropriate, adequate, alternative and additional provision has been put forward. It is, therefore, contrary to Policy OS1 'Preservation of Existing Areas of Open Space' of the Adopted Borough of Luton Local Plan, PPG17 'Planning for Open Space Sport and Recreation and Policy LC1 of the Draft Replacement Luton Local Plan'.

"(03)

The proposed development of the site for housing is not necessary to meet identified Structure Plan provision.

"(04)

The proposed development of the site for housing is premature in advance of the emerging Replacement Local Plan, the process of which will fully assess all potentially suitable sites for future housing development in the Borough."

As will be seen from his decision letter quoted below, the Inspector who determined the claimant's appeal had regard to the Planning Committee's resolution of 6th April as giving the Council's putative reasons for refusing the appealed application.

On 20th and 21st May 2003 an inquiry was held by the First Secretary of State, by his duly appointed Inspector, to determine the Claimant's appeal against the Council's deemed refusal of the appealed application. By a decision letter dated 14th July 2003, the First Secretary of State, by his Inspector, refused the claimant's appeal.

In these proceedings, the claimant seeks to challenge the Inspector's decision to refuse its appeal pursuant to Section 288 of the 1990 Act.

The Relevant Legal Principles.

A challenge under Section 288 of the 1990 Act to the validity of an Inspector's decision on an appeal under Section 78 of the 1990 Act may be made only upon the grounds that the Inspector's decision (i) is not within the powers of the Act; or (ii) that any of the relevant requirements have not been complied with in relation to the decision.

There was no issue between the parties as to the relevant legal principles to be applied to a Section 288 challenge. These principles were conveniently summarised by Mr Kolinsky, on behalf of the First Secretary of State, under the following five headings:

(1) The decision letter should be read as a whole and not construed in the same way as one would construe a Statute. See the speech of Lord Bridge in Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 at page 165, where Lord Bridge said:

"In Ward v Secretary of State for the Environment (1989) 59 P & CR 486, 487, Woolf LJ said:

"'With regard to the requirement to give reasons it suffices to say that the reasons must be ones which are understandable to those who will receive those reasons. In particular they have to be reasons which are understandable to the applicant (in this case the developer who wished to develop the site) and also those who objected to the proposed development, which includes the present appellant. However, the court in a series of authorities has made it clear that a decision letter of an inspector must be approached with due allowance for the fact that the document is not now normally drafted with any legal assistance; it must not be construed in the same way as one would construe a statute, and above all it must be looked at as a whole and judged on the basis of the impression created when the decision letter is looked at as a whole, rather than concentrating on a particular sentence or paragraph in the letter.'

"I accept entirely that decision letters should not be construed as statutes and should be read as a whole. But I am not sure how far any willingness on the part of the courts to construe inspectors' decision letters benevolently is properly referable to their having being drafted without legal assistance."

(2) As a matter of general approach, the court should not subject an inspector's decision letter to close textual scrutiny. As Hoffman LJ (as he then was) stated in South Somerset DC v Secretary of State for the Environment [1993] 1 PLR 80 at page 83 (CA), in the context of describing how the court should evaluate an inspector's approach to challenges to the Inspector's understanding of policies:

"The Inspector is not writing an examination paper on current and draft development plans. The letter must be read in good faith and references to policies must be taken in the context of the general thrust of the inspector's reasoning. A reference to a policy does not necessarily mean that it played a significant part in the reasoning: it may have been mentioned only because it was urged on the inspector by one of the representatives and he wanted to make it clear that he had not overlooked it. Sometimes his statement of policy may be elliptical but this does not necessarily show misunderstanding. One must look at what the inspector thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood a relevant policy or proposed alteration to policy."

(3) The duty to give reasons requires the Inspector to state his reasons in sufficient detail to enable the reader to know what conclusions he has reached on the "principal important controversial issues": see the speech of Lord Lloyd in Bolton MDC v Secretary of State for the Environment [1995] 3 PLR 37 (HL) at 43C, where he said this:

"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 'principal important controversial issues'. To require him to refer to every material consideration, however insignificant, and to deal with every argument, however peripheral, would be to impose an unjustifiable burden."

(4) The Inspector's reason or reasons can be stated briefly: see Bolton MDC v Secretary of State for the Environment at page 46G where Lord Lloyd said:

"The Secretary of State pointed out that the inspector himself attached limited weight to his projection of retail spending. This was the Secretary of State's reason for not changing his view. I agree that the reason is expressed very briefly, when compared with the mass of material which the respondents placed before him. There is no attempt to analyse that material. But this was not necessary. The reason is there, and that is all that r17(1) of the 1988 rules requires."

(5) It is a fundamental feature of the Section 288 jurisdiction that an inspector's conclusions on matters of planning judgment are not open to challenge in the High Court save on grounds of perversity: see the speech of Lord Hoffman in Tesco v the Secretary of State for the Environment [1995] 1 WLR 759 at 780F to H, where he said:

"Materiality and planning merits.

"It would be inappropriate for me to rehearse the reasoning in the Plymouth case. But, I shall, if I may, look at the question from a slightly different perspective. The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process."

See also the very helpful observations of Sullivan J as to the ambit of Section 288 challenges in Newsmith Stainless Limited v Secretary of State for the Environment, Transport v the Regions [2001] EWHC Admin 74 at paragraphs 6 to 8 of his judgment, where he said:

"6.

An application under Section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under Section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits.

"7.

In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.

"8.

Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task."

The grounds of challenge.

The claimant seeks to quash the Inspector's decision on four principal grounds, that can be summarised as follows:

(1) The Inspector failed to explain and provide any or any adequate reasons as to why the alternative open space offered by the claimant by means of a unilateral obligation under Section 106 of the 1990 Act was not acceptable having regard to the local development plan policy. Hereafter I shall refer to this as the "Open Space Provision Challenge".

(2) In dealing with the question of housing need, the Inspector relied upon an Urban Capacity Study prepared on behalf of the Council, in respect of which there was no verifiable evidence. Hereafter, I shall refer to this as the "Housing Need Challenge".

(3) The Inspector failed to take into account and/or failed to consider the supportive reports and recommendations to the Planning Committee by the officers in respect of the duplicate application. Hereafter, I shall refer to this as the "Duplicate Application Challenge".

(4) In reaching his decision, the Inspector attached some significance to the loss of an opportunity to develop and/or improve the appeal site as a public open space at some future date, when the evidence before the inquiry was such that, in effect, there was no realistic prospect of such an opportunity ever arising in the foreseeable future. Hereafter, I shall refer to this as the "Lost Opportunity Challenge".

I now turn to consider the parties' submissions and my conclusions in respect of each of those four grounds of challenge.

Ground 1: The Open Space Provision Challenge.

On behalf of the claimant, Mr Goatley made it clear that the open space provision challenge was the principal ground of challenge to the Inspector's decision. In order to understand the nature and extent of this first ground of challenge, it is both helpful and necessary to set out the following paragraphs from the Inspector's decision letter.

"Procedural matters.

"1.

The application was not determined by the Council but putative reasons for refusal were issued subsequent to the lodging of the appeal. The putative reasons for refusal relate to:-

"(i)

the loss of land allocated as 'Allotments' in the adopted Borough of Luton Local Plan without the provision of appropriate replacement facilities;

"(ii)

the loss of an existing area of open space for which no appropriate, adequate, alternative and additional provision has been put forward;

"(iii)

that development of the appeal site is not necessary to meet identified Structure Plan provision; and

"(iv)

that the proposed development is premature in advance of the emerging Replacement Local Plan.

"2.

At the inquiry an executed Unilateral Undertaking pursuant to S106 of the Town and Country Planning Act 1990 was submitted. This would, amongst other things, provide for open space within the site together with off-site open space in one of two specified locations as replacement for the loss of the allotment land with the payment of an appropriate commuted sum for future maintenance. It also relates to the provision of an 'educational contribution' commensurate with the proposed residential development, the provision of affordable housing on 25% of the net developable area and £10,000 towards off-site highway improvements. As a result of discussions at the inquiry a revised Unilateral Obligation was submitted after the close of the inquiry. I refer to these matters later in my decision.

"3.

I conducted an accompanied visit to the appeal site on 21 May 2003 and, with the agreement of the main parties, made unaccompanied visits on 22 May 2003 to view a number of other sites referred to at the inquiry. This included land at Lynwood Avenue and Chartwell Drive referred to in the Unilateral Undertaking.

"Main issue.

"4.

On the basis of all the evidence and representations, I consider the main issue in this case is whether, in the light of national and local planning policies, the residential development of the appeal site overrides the desirability of retaining the land for allotment use in particular and/or open space in general.

"Planning policy.

"5.

The statutory development plan framework comprises the Bedfordshire Structure Plan 2011 (BSP) adopted in 1997 together with the Borough of Luton Local Plan (LP) also adopted in 1997. Strategy Policy 1 of the BSP provides the basis for more detailed policies and sets out a number of key criteria aimed at ensuring that sustainable levels, locations and forms of development can be achieved. A key element of the county strategy is to make provision for 49,300 new homes in the period to 2011 with Policies 32 and 33 indicating that 6,200 of these should be in Luton Borough.

"6.

Unless it is intended to meet a specific identified need, Policy H2 of the LP seeks to resist development proposals on sites not identified on the Proposals Map that would increase the level of housing provision significantly above that specified in the BSP. LP policy H4 requires the provision of an element of affordable housing on developments of more than 40 dwellings. The thrust of LP Policy BP1 is to ensure that new development is of a good standard and protects or enhances the environment. It recognises that provision may need to be made for offsetting the loss of, or impact on any existing amenity, natural resource or built facility present on the site prior to development. In this context, Policy OS5 relates to allotment provision and seeks to maintain a standard of 0.2 hectares of allotment land per 1000 population in the Borough. Development that would result in the loss of existing allotments will be resisted if consideration has not been given to appropriate replacement facilities. Similarly, LP Policy OS1 seeks to safeguard existing areas of open space from development unless an alternative and appropriate area of public open space is provided in advance.

"7.

Reviews have commenced in relation to both the Structure Plan and the Local Plan. However, although a Deposit Structure Plan was issued in November 2002, it has been held in abeyance at the Direction of the Government Regional Office pending revised regional planning guidance and the outcome of the Milton Keynes South Midlands Study. Accordingly, the draft structure plan can be given little weight. A First Deposit Draft Luton Local Plan (DDLP) was issued in May 2003 for public consultation and is therefore at a very early stage in the statutory process that should lead to its eventual adoption. Policy H2 indicates how it is intended to meet the structure plan target of 6200 new dwellings by 2011 including by the provision of 600 additional homes on a number of identified sites. Even so, it identifies a slight shortfall of about 150 units below the SP target. Draft Policy LC1 seeks to protect green spaces in a manner similar to LP Policy OS1 unless it can be demonstrated that, amongst other things, the development would meet a recognised and pressing need. However, given that it is at an early stage in the statutory plan making process, the emerging plan can be afforded little weight as a material consideration in this appeal.

"8.

Relevant national policy advice is to be found in Planning Policy Guidance Note 3: Housing (PPG3) and Planning Policy Guidance Note 17: Planning for Open Space, Sport and Recreation (PPG17).

"Reasons.

"9.

The appeal site lies to the rear of Birchen Grove, St Martin's Avenue, Haywood Drive and Fair Oak Drive within a residential area that is within the Round Green area of Luton about 2kms north east of the town centre. The site extends to approximately 1.67 ha. It is irregularly shaped and, although relatively flat, the land is at a slightly higher level than the surrounding dwellings. The site is extensively overgrown with remnants of former buildings and hardstandings associated with its last use as allotment gardens which existed from at least the 1950s until 1997 when the use ceased after notices to quit were served. Whilst the site is surrounded and overlooked from adjacent residential properties on all sides, the main public viewpoint is from the access point off Birchen Grove.

"10.

The appellants argue that LP Policy OS5 does not apply to the appeal site since it is predicated on the allotments being in active use. However, I do not agree with this construction; the accompanying text simply advising that open space provision, which by the Plan definition encompasses allotments, includes all active recreational space within the urban area. I find no reason why the policy should not apply to open land that was formerly used as allotments. To do otherwise would largely negate the objective of the policy to maintain a satisfactory provision of allotments in the Borough since it could be easily circumvented by cessation of an active use ... "

" ... 13. Policy is of course the primary authoritative basis for guiding development. However, clinging to policy where there is no beneficial purpose would, in my view, be inappropriate. In the circumstances of this case, I can find no compelling evidence that sufficient latent demand exists to justify the retention of the appeal site in the hope rather than expectation that the former use as allotments could be re-established. Accordingly, I consider that the material considerations outweigh the need for the site to be safeguarded in accordance with the provision of LP Policy OS5.

"Open space.

"14.

PPG17 advises that 'open space should be taken to mean all open space of public value'. National policy guidance and the explanatory text to Policy OS1 of the LP indicate that allotments fall within the general definition of open space. Both documents also recognise that disused or redundant open land uses can fall within this definition while the annex to PPG17 recognises that areas such as natural and semi-natural urban greenspace, scrub and derelict open land can have public value. Therefore, even though the site no longer comprises active allotments, I find no reason to doubt that the appeal proposal should be considered in the light of those policies designed to protect and enhance open space provision in the Borough.

"15.

Due to its semi-derelict and overgrown state, the absence of public access, and restricted public visibility, I accept that the value of the appeal site as a visual amenity is limited. That is not to say that it is without any amenity value. As paragraph 3(vi) of the annex to PPG17 points out, '... even without public access, people enjoy having open space near to them to provide an outlook, variety in the urban scene, or as a positive element in the landscape'. Even in an unused state the appeal site provides a significant and welcome sense of openness that I consider to be much needed within this extensive built up residential estate.

"16.

I accept that an area of about 0.43 ha of laid out and equipped open space would be provided as part of the proposed development. However, in my opinion, this would not compensate for the overall reduction of green space and the opportunity to improve its quality and value that would be lost should the remainder of the site be developed for housing. Drawing on this, I conclude that the proposed development would conflict with LP Policy OS1 unless an alternative and appropriate area of public open space is provided in the same area.

"17.

The appellants have offered to transfer to the Council, via an Unilateral Undertaking, either of two areas of open land of approximately 1.2 hectares (3 acres) in order to provide for their use as public open space. I note that the Council has a preference for land at Chartwell Drive/Felstead Way. I saw both of these areas to be heavily wooded. Moreover, the land at Lynwood Avenue is designated as a county wildlife site whilst that off Chartwell Drive/Felstead Way is steeply sloping which restricts its potential as a more formal or actively used area of public open space. Consequently, whilst I accept that transferring the land into public ownership with the potential of greater public access has benefits to the overall quality and usefulness of open space provision in the Borough, both areas of land have constraints that require the careful management of public access. In assessing the adequacy of open space provision in the Borough it seems to me that the Luton Parks, Playing Pitch and Open Space strategy document carries considerable authority since it reflects up to date circumstances and is tailored specifically to the needs of the Borough. Arising from the strategy document I am satisfied that the need locally is to provide additional neighbourhood parks which are identified as a particular deficiency in the locality, failing to meet the recommended spatial provision of such facilities being within 300 metres of all homes.

"18.

Given their characteristics, topography and location, in my opinion, neither replacement site could reasonably be expected to function as a neighbourhood park. Moreover, I consider that the physical characteristics and location of both the Lynwood A venue and Chartwell Drive/Felstead Way land means that neither would provide an alternative and appropriate area of public open space to replace the appeal site. In coming to this view, I endorse the Council's objective of maintaining a diverse provision of open space for the Borough which reflects the thrust of the development plan and PPG17. Accordingly, I conclude that the proposals would conflict with LP Policy OS1. I further consider that the provisions of the Unilateral Undertaking in relation to replacement open space would not overcome this objection."

I agree with Mr Kolinsky's submission that the Inspector's summary of the Local Plan Policy OS1, as set out in the final sentence of paragraph 6 of the decision letter, is "flawless". However, having regard to the importance of Local Plan Policy OS1 to the Inspector's conclusions on the "open space" issues in the appeal, I consider that it is helpful to quote the material terms of Local Plan Policy OS1 in full, as follows:

"OS1: Preservation of existing areas of open space.

"Existing areas of public and private open space including redundant school playing fields, private sports grounds, river corridors and sites of nature conservation interest, as defined in chapter 3F, will normally be safeguarded from development unless an alternative and appropriate area of public open space within the same vicinity is provided in advance. This alternative should increase the overall open space provision in accordance with the underlying objective. Public use of private open space will be encouraged where appropriate and any use or other development which restricts public access to public open space will normally be refused."

Mr Goatley emphasised that the first ground of challenge was not based on irrationality or Wednesbury unreasonableness, but upon a deficiency of reasons by the Inspector. Mr Goatley referred to the final sentence of paragraph 16 of the decision letter (see above) in which the Inspector correctly concluded that the proposed development would conflict with LP Policy OS1, unless an alternative and appropriate area of public open space were to be provided in the same area. Stated in broad terms, it was Mr Goatley's submission that the Inspector then failed to explain adequately or at all his reasons for rejecting each of the replacement sites that were available (ie Lynwood Avenue and Chartwell Drive) as an alternative and appropriate area of public open space: see in particular the terms of paragraphs 17 and 18 of the decision letter.

In the course of his submissions, Mr Goatley referred to various passages in the supporting text of LP Policy OS1 and in the text of the Luton Parks Playing Pitch and Open Space Strategy document. Mr Goatley submitted that each of those Policy statements were supportive of each of the available replacement sites as a relevant and potentially appropriate area of open space. However, it was his submission that the Inspector had adopted an unduly restrictive approach to the form of open space provision which was said to be of value within the terms of the Local Plan, and that the Inspector had not explained adequately or at all why he considered both replacement sites to be in conflict with each of the Policy documents and, in particular, with LP Policy OS1.

Mr Kolinsky submitted that it was clear from reading paragraphs 14 to 18 of the decision letter as a whole that the Inspector had properly understood the relevant policies, in particular LP Policy OS1, and had reached a judgment that the combination of the on-site provision and off-site provision of open space provided in the scheme and unilateral undertaking did not, in his view, amount to the provision of an alternative and appropriate area of public open space in the same area, as required by LP Policy OS1. Mr Kolinsky contended that, so far as the off-site open space offered in the unilateral undertaking was concerned, the Inspector had been particularly concerned about its physical characteristics and location: see paragraph 18 of the decision letter.

Mr Kolinsky accepted that the claimant strongly disagreed with the Inspector's conclusions, but stressed that it was the Inspector's task to exercise a judgment as to where the balance lay. He submitted that the Inspector had applied the correct test and that his decision was therefore lawful and unimpeachable.

Mr Kolinsky submitted further that it was clear from paragraph 15 of the decision letter that the Inspector had reached his conclusions, based in part on his site visit, that there would be a loss of openness when viewed from adjacent houses and that this was a material consideration. Similarly, the Inspector felt that development of the majority of the site which was not presently built upon would result in a loss of the sense of openness that the site provided at present in its urban setting within what the Inspector described as an "extensive built-up residential estate". Mr Kolinsky submitted (correctly in my view) that these were all matters of judgment upon which the Inspector was entitled to reach his own conclusions and which he duly did. Mr Kolinsky stressed in this context the importance of the view formed by the Inspector on the site visits which he made and to which he referred in his decision letter.

Mr Kolinsky contended that it was clear from a reading of the Inspector's decision letter as a whole that he had firmly in mind the issue of whether or not the proposed off-site provision amounted to an alternative and appropriate area of public open space in the same area of the appeal site, as required by LP Policy OS1, and concluded in the exercise of his judgment that it did not. I agree with that submission.

I also agree with Mr Kolinsky's submission that the Inspector did not adopt a restrictive approach to the form of open space provision that was said to be of value within the terms of the Local Plan. Rather, the Inspector decided that the particular off-site provision offered in the present case did not amount to an alternative and appropriate area of public open space within the same vicinity.

Mr Kolinsky readily accepted that it was clear from the explanatory text of the open space chapter of the Local Plan that there is an inclusive approach to what constitutes open space. He also rightly accepted that each of the alternative open space options put forward by the claimant was capable of amounting to an alternative and appropriate area of open space. However, Mr Kolinsky submitted (again correctly in my view) that the Inspector was perfectly well aware of this but rightly went on to consider the next necessary stage of the analysis, namely whether in the particular circumstances of this case, the off-site open space offered amounted to an alternative and appropriate provision in the same area. Mr Kolinsky submitted that it was at this latter stage of the analysis that the claimant's case had failed. He submitted that this second stage involved the Inspector reaching a conclusion as a matter of judgment, based amongst other things on his observations during his site visits. Mr Kolinsky contended that the conclusion that the Inspector reached on that issue was one which he was entitled to reach and that his decision was, therefore, unimpeachable.

Mr Kolinsky submitted that properly read as a whole, the decision letter made it clear that the Inspector had understood the relevant policy framework but had not been persuaded, due to its location and characteristics (see page 15 of the decision letter), that the off-site open space on offer amounted to an alternative and appropriate area of public open space in the same area, as required by Policy OS1. Mr Kolinsky submitted that the Inspector had not ruled out either replacement site as being incapable of constituting open space within the use of that phrase in the Local Plan, but that in the particular circumstances of this case, neither site did in fact meet the requirements of the Policy. I agree with those submissions.

Accordingly, in my view, the Inspector did give adequate reasons for concluding that the loss of open space that would be involved in the development of the appeal site was contrary to the material development plan policies, his reasoning showed that he properly understood Policy OS1 of the Local Plan and he exercised his judgment to apply it to the particular circumstances of the appeal, having regard to, amongst other things, his assessments of the appeal site and the proposed off-site alternatives as assessed at his site visits. I reject Mr Goatley's submissions to the contrary effect. For those reasons, this first round of challenge fails.

Ground 2. The Housing Need Challenge.

In relation to this ground of challenge, Mr Goatley referred to paragraphs 19 to 23 of the decision letter, which are in the following terms:

"Housing need.

"19.

I have concluded that the proposal would conflict with the development plan in terms of open space provision. I therefore turn to consider whether there is a compelling need for an alternative use for residential development, for which the site would also be suitable, that outweighs the benefits of retaining the land for this purpose. In this context I therefore turn to consider the question of housing need.

"20.

The BSP requires the provision of 6200 dwellings in Luton Borough in the period to 2011. As of January 2003 the Council's monitoring (DDLP Table 2) indicates that, excluding dwellings under construction and sites with planning permission, sites for a further 1535 homes are required during the structure plan period. PPG3 advises that, in identifying sites to be allocated for housing, local authorities should follow a search sequence, starting with the re-use of previously developed land and buildings within urban areas identified by the urban capacity study, then urban extensions and finally new development around nodes in good public transport corridors.

"21.

Although I agree with the appellant that the appeal site can properly be described as unused or underused land it falls outside the definition of previously developed land set out in Annex C of PPG3. Nor, in assessing the contribution it could make to meeting housing targets, do I consider that the appeal site should be viewed as a 'windfall site' which, as paragraph 35 of PPG3 makes clear, are to be regarded as previously developed sites that have unexpectedly come forward. In terms of national guidance the appeal site therefore comprises greenfield land.

"22.

Development of the site for housing to meet the required housing provision could not therefore be supported if the latter could be met on sequentially preferred previously developed land. In this respect, an Urban Capacity Study (UCS) carried out on behalf of the Council and completed in October 2002 has led to a number of potential brownfield sites, including a number of 'large sites' of 10 dwellings or above, being taken forward into the DDLP. Together with an allowance for windfalls these are intended to broadly satisfy the residual requirement of 1535 new dwellings to 2011, albeit that a shortfall of some 150 units may still exist. However, given the lengthy plan period ahead, in my opinion, it is too early to rule out the small shortfall being met by development on brownfield land within the urban area. I therefore do not regard this consideration to represent a convincing reason to release the appeal site for development now.

"23.

Although the appellant has concerns that many of the larger sites identified by the UCS and taken forward into the DDLP are unlikely to come forward, this is a matter more properly considered within the local plan preparation process. From the evidence presented at the inquiry, it seems to me that there is significant capacity available on other sites identified by the UCS which could be utilised to contribute towards the 2011 housing requirements. In these circumstances, I am not persuaded that it is necessary for this greenfield site to be released for housing contrary to the provisions of the development plan and ahead of sequentially preferred sites identified in the UCS. In reaching this view, I consider that the appeal site is of sufficient size and capacity that its development for housing would represent a significant conflict with the important principles set out in PPG3. The appeal development would therefore materially impair the Council's emerging housing strategy and the achievement of an appropriate balance between housing provision and the protection and enhancement of open space."

Mr Goatley submitted that the Urban Capacity Study ("the UCS"), to which the Inspector referred in paragraphs 19 to 23, had not been provided in evidence, and that only a very short extract had been produced. In fact, the extract in question was a table showing a significant number of potential sites for development for residential purposes. It was therefore Mr Goatley's submission that the Inspector's reliance upon the UCS was not supported by any verifiable evidence and, therefore, was unsustainable.

In my view, there is no substance in this particular criticism of the decision letter. It is true that only a short extract from the UCS was produced at the Inquiry, but it was an important extract giving details of residential sites. Moreover, no application was made to the Inspector for a direction that the entire study should be produced at the Inquiry. In any event, it is clear that the issue of housing was addressed by Mr Alan Storah, the Council's Strategic Planning Manager, who gave evidence at the Inquiry: see paragraphs 4.42 to 4.49 of Mr Storah's proof of evidence. I am satisfied that Mr Storah's evidence together with the other relevant material put before the Inspector at the Inquiry provided an appropriate basis for the conclusions expressed in paragraphs 19 to 23 of the decision letter. Accordingly, for those reasons, this ground also fails.

Ground 3: The Duplicate Application Challenge.

Mr Goatley submitted that the Inspector had failed to consider or have regard to a material consideration, namely the Council's planning officers' favourable reports to the Planning Committee in respect of the duplicate application.

Although there is no reference to the officers' reports in the Inspector's decision letter, in my view there is nothing in this ground of challenge. I agree with Mr Kolinsky that it is important to remember that the appeal under section 78 of the 1990 Act was against the Council's non-determination of the appealed application. It did not address the officers' recommendations in respect of a duplicate application which was undetermined at the date of the Inquiry (May 2003) and which still remains undetermined at the present time.

I also agree that there was, in any event, no requirement to make specific reference to the contents of the officers' report in the Inspector's reasoning. What matters was whether the Inspector grappled with the underlying issues in the section 78 appeal that he had to determine, or at least those issues which can properly be described as being issues of principal importance.

I agree with Mr Kolinsky's submission that the Inspector plainly did grapple with the issue of housing need and addressed those issues in paragraphs 22 and 23 of the decision letter. In my view, the Inspector was not required to do so by reference to the officer's analysis contained in a report prepared in respect of another, albeit duplicate, application. The Inspector plainly understood that he had to strike a balance between housing provision and the protection and enhancement of open space. I accept Mr Kolinsky's submission that the fact that the officers of the Council, when evaluating a duplicate application, may have struck the balance differently is nothing to the point. In my view, there is no basis for contending that the Inspector had to make specific reference to the officers' analysis or to explain in specific terms his conclusions by reference to the officers' views expressed in relation to the duplicate application. Accordingly, for those reasons, this third ground of challenge also fails.

Ground 4: The Lost Opportunity Challenge.

Mr Goatley referred to paragraph 16 of the decision letter (see above) in which the Inspector stated that the "opportunity to improve its quality and value would be lost should the remainder of the site be developed for housing". Mr Goatley also referred to paragraph 25, in which the Inspector stated, "Moreover, in my judgment, the possibility that public use of the land might occur in the future cannot be ruled out should the appeal be rejected", and to paragraph 26, which refers to the site's "potential to provide an enhanced open space provision, in accordance with the LP".

Mr Goatley pointed out that the evidence given to the inquiry was to the following effect: (1) that the Council had been offered the appeal site, by the claimant, on three separate occasions within the previous six to seven years and that those offers had been turned down by the Council; (2) that the Council did not have the resources to acquire the appeal site (whether compulsorily or by agreement) and lay out the site as an area of public open space; (3) that the claimant's unchallenged evidence to the Inquiry was that one of the Council's officers had stated that even if the claimant gave the appeal site to the Council for no cost, the Council would not have the resources to clear it up and lay it out as formal play space.

It was Mr Goatley's submission that in the light of the foregoing evidence, the Inspector had failed to identify any justification for the potential opportunity to which he referred in paragraphs 16, 25 and 26 of the decision letter. Accordingly, Mr Goatley submitted that to the extent of the Inspector's decision was based on having regard to that lost opportunity, his decision was unsustainable.

Mr Kolinsky submitted that the Inspector was entitled to take account of this potential opportunity as a material consideration and the fact that there was evidence at the Inquiry suggesting that there was no current prospect of beneficial enhancement of the land as open space was nothing to the point. I agree with that submission. Mr Kolinsky also submitted, correctly in my view, that it is self-evident that in making the land use decisions, an Inspector is entitled to look to the long term and not simply take account of what is likely to happen at the date that the decision is made, or shortly thereafter. The Inspector was quite entitled to have in mind and give appropriate weight to the possibility that things might change in the future. The Inspector did not need to have tangible evidence that such a beneficial change would probably occur. I agree with those submissions. Accordingly, for those reasons, I am satisfied that there is no substance in ground four of the claimant's challenge either.

Conclusion.

For the reasons explained above, I have come to the firm conclusion that none of the four grounds of challenge advanced by the claimant in these proceedings provides a basis for contending that the Inspector's decision was erroneous in law. Accordingly, this claim must be and is hereby dismissed.

MR BARCLAY: My Lord, I apply for the Secretary of State's costs.

MR JUSTICE FORBES: Yes. I have been given a schedule of costs, a statement of costs. You are applying for summary assessment, are you?

MR BARCLAY: I am.

MR JUSTICE FORBES: Is there any objection to that?

MR MCLEISH: There is no objection to that, my Lord, and there is also no objection to the amount claimed.

MR JUSTICE FORBES: There is no objection to the amount claimed. That is very helpful, thank you very much. In that case, the order that I make is that this claim be dismissed, and that the claimant do pay the First Secretary of State's costs which I summarily assess in the sum of £4,090. Mr McLeish, I am right, am I not, that the amount you are agreeing to is the revised total as opposed to the original total?

MR MCLEISH: Yes, it is.

MR JUSTICE FORBES: In that case, my order stands. Thank you very much indeed.