Secondsite Property Holdings Ltd v Borough of Poole

MR JUSTICE SULLIVAN:

Introduction: This is an application under section 287 of the Town and Country Planning Act ("the Act") to quash the housing and employment chapters in the Poole Local Plan First Alteration ("the Plan") which was adopted by the defendant on 30th March 2004. The claimant owns a former British Gas site at the junction of Yarmouth Road and Bourne Valley Road in Poole ("the site"). The site is about 1.6 hectares in extent and was allocated for employment use under policy E1 at the Deposit Draft Stage of the Plan. The claimant objected to this allocation and contended that the site should be allocated for housing under policy H1.

An inspector held a public local enquiry into the outstanding objections between October 2002 and January 2003. Having heard 121 objections at the enquiry and considered 633 objections in writing, he reported to the defendant on 31st March 2003. The claimant did not appear at the enquiry. Its objection was one of those considered by the inspector on the basis of the party's written submissions. Having considered those submissions, the inspector agreed with the claimant and recommended that the Plan should be modified by the deletion of the site from policy E1 and its addition as a housing site within policy H1. In his report the inspector considered the numerous objections in 15 chapters, dealing with the objections under various topic headings. Thus chapter 8 dealt with housing, chapter 9 with employment, chapter 14 with the central area and so forth. He made numerous recommendations as to what modifications should, or should not be made to the plan.

Having considered the inspector's report, the defendant was required by regulation 27(1) of the Town and Country Planning (Development Plan) (England) Regulations 1999 ("the Regulations") to publish a statement ("the statement") setting out the decisions that had been reached in the light of the inspector's report and the reasons for any of those decisions which did not follow a recommendation contained in the report. The statement was published in October 2003. It explained that the defendant proposed not to accept the inspector's recommendation in respect of the site. Thus the site would continue to be allocated for employment use.

In December 2003 the claimant made detailed representations in support of its submission that the defendant's decision not to follow the inspector's recommendation was "without merit".

As is customary, there was no further enquiry, and pursuant to Regulations 28 and 29(6) the defendant prepared a statement of its decisions in respect of all objections to modifications (or failure to make recommended modifications) which had not been withdrawn and gave its reasons for those decisions ("the responses"). The responses were published in February 2004. The defendant adhered to its decision, that the inspector's recommendation that the site should allocated for housing should not be accepted.

The Issue: It is common ground that the reasons given pursuant to the Regulations must be proper, adequate and intelligible and deal with the substantial points raised: see Westminster City Council v Great Portland Estates PLC [1985] 1 AC 661. There are a number of authorities which give guidance as to the approach to be adopted to the adequacy of reasons given under the Regulations and the parties are agreed that:

Policy H1(f) set out the proposed housing allocations. The sites were listed in a table. The table divided the sites between those sites which are within the central area and those which are in the rest of the urban area. Information is given in the table about each site, including such matters as the size of the site, the minimum number of dwellings that it is expected to contribute and whether it is within Phase 1 (2001 to 2005) or Phase 2 (2006 to 2011). Some sites straddled both Phases 1 and 2. The total number of dwellings was 2705 of which 245 were to be provided by Talbot Village (policy H1(e), a site in the rest of the urban area).

The inspector grouped together various objections that had been made as to the adequacy of policy H1(f). In paragraph 8.76 he said there were a number of issues:

The inspector considered all of these issues in some detail in paragraphs 8.77 to 8.109 of his report. For present purposes it is sufficient to note that the inspector was satisfied with the defendant's approach to the Urban Capacity Study and felt that the defendant's figures for windfall sites and allowances for non-implementation were satisfactory. In respect of issue (f) he did not accept that there was a need for greenfield allocations.

The inspector dealt with phasing between paragraphs 8.92 and 8.96 as follows:

In paragraphs 8.93 and 8.94 he dealt with detailed matters which are not directly relevant for present purposes.

Paragraph 8.95 continues:

The inspector then dealt with yield in paragraphs 8.97 to 8.106.

In 8.97 he said this in part:

The inspector then set out a number of reasons, seven in all, including such factors as the sites tended to be in multiple ownership, some of them were contaminated, et cetera.

The inspector discussed these difficulties in the following paragraphs of his report:

In paragraphs 8.115 and 8.116 the inspector recommended the council to note his recommendations in paragraphs 8.28 and 8.57 on sites to be added to policy H1(f) for development in Phase 1 and to note his recommendation to include policy H1(e) in Phase 2 with a proviso for earlier release if monitoring showed it to be necessary.

Turning to the employment chapter in the inspector's report, the inspector said in paragraph 9.4 that the issue was.

He gave his reasons in response to that issue in paragraphs 9.5 to 9.8 as follows:

In the light of those conclusions his recommendation in 9.9 was:

It is to be noted that when dealing with objections to the effect that E1 should be more flexible, the inspector said in paragraph 9.11:

In its statement the defendant's summary response to these views of the inspector was as follows:

In its detailed justification for not accepting the inspector's recommendations in respect of the site, the defendant said this:

Responding to the inspector's conclusions in respect of policy H1(f) generally and explaining why recommendations 8.114 and 8.115 were not acceptable, the defendant said this:

It was proposed to modify table H1(f). The former Pilkington Tile Site and adjoining land was now shown as having a capacity for a minimum of 250 dwellings compared to the earlier figure of 160. The Talbot Village site was placed in Phase 2, but there was an asterisk which indicated that it "could be released earlier if monitoring shows it to be necessary". The total number of dwellings was increased from 2705 to 2765.

So far as employment was concerned, the defendant's statement said this:

The claimant made very detailed representations in response to the defendant's statement. It was argued again that there was an over supply of employment land in the borough, and, whilst the housing allocations appeared sufficient on paper, the yield was likely to be less in practice, thus increasing the need to release greenfield sites. It is fair to say that these arguments were not new. They tended to be a restatement of the claimant's position, bolstered by appropriate references to the inspector's conclusions in its favour. The claimant's representations were very fully summarised in the defendant's response. The defendant's response in relation to the housing supply issue largely reiterated the information contained in the earlier statement, but amplified the reference to sites where "implementation is commencing" by adding three examples:

When dealing with an expression of support for the council's justification for allocating the Talbot Village site, the council yet again made the point that it was confident that the housing provision to 2011 would be easily met. In response to a contention:

Finally, in its response to the further representations relating to employment, the council said this:

Submissions and Conclusions: It is convenient to deal at the outset with a detailed criticism of the last of those passages from the defendant's responses. On behalf of the claimant Mr Harris QC submitted that the defendant had "speculated" as to what might be addressed in the review of the Structure Plan, and that such a speculation was an inappropriate and/or immaterial consideration. I do not agree. In considering the implications of an over supply of employment land within its own area the defendant was entitled to have regard to the supply of employment land in adjoining local authority areas. The weight to be given to that consideration was a matter for the defendant's planning judgment. Equally the defendant's planning officers were entitled to form a judgment as to the likely response of the Structure Plan authority to concerns about significant allocations outside the borough. The officers' view that "this issue will undoubtedly be addressed through the Structure Plan" is not to be dismissed as mere speculation, nor can it be said to have been irrelevant or immaterial. This is, in any event, a very minor part of overall picture that was being presented in the responses insofar as they dealt with employment.

Pausing there, it is plain from the inspector's reasoning that he did not recommend that the site should be reallocated from employment use to housing because it was intrinsically more suited for housing rather than employment use. He considered that the site was suitable for either use, but concluded that it should be reallocated for housing because he considered that meeting the housing need outweighed the benefit of retaining the site for employment purposes. Thus there were two sides to the balancing exercise carried out by the inspector, housing need and employment need.

In his skeleton argument Mr Harris contended that the defendant's statement and responses did not deal adequately with either of the two sides of the balance, housing and employment. In his submissions before me he fairly conceded that the reasons given by the defendant on the employment side of the balance were adequate, at least by the time that the claimant received the responses. I accept that adequate reasons have to be given at both stages of the process. If inadequate reasons are given at the Regulation 27 stage, it may not be possible for a claimant to establish that he has suffered any substantial prejudice for the purposes of section 287(1)(b) if adequate reasons have subsequently been provided at the Regulation 28/29 stage. This will not always be the position. Each challenge under section 287 is fact sensitive. There may be cases where the inadequacy of the reasoning at the Regulation 27 stage has prevented an objector from making meaningful submissions in response to a proposed modification. In such a case it is possible that, even if adequate reasons have been given at the Regulation 28/29 stage, substantial prejudice may nevertheless have been suffered.

It is unnecessary to explore such possibilities in this judgment, because I am entirely satisfied that, whatever criticisms might be made of the statement, the claimant was certainly not prevented from making very full and detailed representations about both sides of the balancing exercise. I do not accept that there was any inadequacy in the statement, insofar as it dealt with the employment side of the balance, and, to be fair to Mr Harris, he did not develop the submission in his skeleton argument that the defendant's reasoning in relation to employment in the statement was inadequate. Since he conceded that by the time of the responses the reasoning in relation to employment was adequate, I am satisfied that there could have been no substantial prejudice so far as the employment side of the balance was concerned in any event. Anyone reading the employment responses could have been left in no doubt as to why the defendant wished to retain the employment allocation for the site, notwithstanding the fact that on paper there was an over supply of employment land by comparison with the Structure Plan requirement.

In simple terms, and I acknowledge that this may be an oversimplification, the defendant's position in relation to the employment allocations was the reverse of its position in relation to the housing allocation. In respect of the latter the defendant was expressing confidence that the allocations would come forward in practice. In respect of the former, it was concerned that, whatever the figures might show, there had been losses and in practice there might be difficulties in the allocated employment sites actually coming forward.

Since both the inspector and the defendant were engaged in a balancing exercise, Mr Harris submitted that the defendant had to give adequate reasons in respect of both sides of the balance. If its housing reasoning was inadequate, then its decision would be flawed, even if no complaint could be made about its employment reasoning. On behalf of the defendant, Mr Lewis did not dissent from this proposition in principle, but submitted that the defendant's housing reasoning was adequate and intelligible.

I turn, therefore, to the claimant's criticism of the defendant's housing reasoning. Before doing so it is important to note that this is not a Stirk type case (Stirk v Bridgenorth District Council [1997] 73 P&CR 479). In that case the local planning authority had merely reiterated a statement which it had made before the local plan enquiry had commenced, and in so doing had completely ignored not merely the local plan inspector's report, but also certain modifications to the Structure Plan which had been made by the Secretary of State. In the present case the defendant identified the inspector's concern that the housing allocations may not meet the Structure Plan requirement and sought to respond to that concern. The claimant criticises the adequacy of that response, rather than the fact that there was simply no response at all.

It is said that the inspector concluded that the yield from the sites which could start in Phase 1 could be optimistic. He acknowledged that the plan had some flexibility, but, in effect, wanted greater flexibility so that the plan could deal with any shortfalls which monitoring revealed. He sought to achieve that greater degree of flexibility in three ways. Firstly, by not deleting the Talbot village allocation which had been urged upon him by a number of objectors. He kept Talbot Village in phase 2, but recognised that "that it could be brought forward if monitoring shows this to be necessary". Secondly, he recommended that two smaller sites, one of them the claimant's site, be allocated for housing, although that recommendation was offset to some extent by the fact that he deleted another housing site. Thirdly, he recommended early monitoring. The defendant accepted the first and third of those recommendations (I will deal with specific criticisms of the council's treatment of the Talbot Village site in due course), but it did not accept the second.

Mr Harris submitted that the defendant's reasons in both the statement and the responses were merely repetitions of previous arguments which the inspector had accepted and taken into account in striking the balance. Thus, for example, the inspector had accepted that the provision of housing throughout the plan period was in excess of the Structure Plan requirement, he had referred to the plus or minus 10 per cent range and to the fact that minimum capacities were given for allocated sites and he had also recommended that the Pilkington Site be extended, all of these being matters to which the council referred in its statement and responses.

Conscious as I am of the need to read the reasoning in such documents as a whole, in my judgment the key to the defendant's approach is to be found in the proposition that:

I accept Mr Lewis's submission that it is necessary to stand back. There is a danger that the mass of detail will obscure the answer to the simple question, why did the inspector want the additional flexibility which he sought to achieve in the three ways described in paragraphs 8.103 and 8.104 of his report? The answer is because, although he was not fully convinced by the detailed argument on each side and could not recommend precise figures, not least because he was dealing with a dynamic situation, he felt that the yield from the sites which would start in Phase 1 "could be optimistic". It is plain from the defendant's reasoning in both the statement and the responses that, based on its experience of what was happening in relation to the allocated sites, it did not share that concern. It followed that it did not accept that there was a need for additional flexibility over and above that which had been incorporated into the Plan and did not, therefore, accept that two smaller sites needed to be allocated to the housing allocations in order to provide that increased measure of flexibility.

The claimant submits that this reasoning on the part of the council is "nowhere near sufficiently analytical". It asks, well, which sites were being referred to by the council, how representative were those sites, what was happening on other sites? The adequacy of reasoning will depend upon the nature of the issue raised. It will be noted that the inspector's underlying concern that "the yield from Phase 1 could be optimistic" (my emphasis) is expressed in general terms. He made it clear that he was not able to put forward any figures, nor did he identify any particular site about which he was concerned. Had he done so, and had he said, for example, that site X was unlikely to come forward before 2007 because it was contaminated and he was not satisfied that the remediation measures could be devised before that time, then the defendant might have had to deal with the inspector's detailed concerns if it was to grapple with his reasoning. The short answer to the claimant's complaint is that there simply was no detailed analysis to which the defendant had to respond. The inspector, as he was entitled to do, had expressed a planning judgment in very general and somewhat tentative terms. The council disagreed with that planning judgment. It followed that it did not accept that there was a need for greater flexibility.

It is said that the defendant's reasoning does not deal with the issue of phasing which was a "key component" of the inspector's concern. It will be recalled that in terms of the overall approach to phasing in the Plan the inspector, in effect, endorsed the defendant's position. There was no separate phasing point beyond the inspector's concern that the yield from the allocated sites in Phase 1 could be optimistic, a concern which the defendant did not share.

Lastly it is submitted that the defendant's responses were inaccurate as a matter of fact. The reference to "the sites where implementation is commencing" was incorrect. Although no sites were identified in the statement, three sites were listed in the responses: Kingland Road, the Pitwines Sites and the Goods Yard site. In a witness statement, dated 21st June 2004, Mr Spiller, a strategic planning officer employed by the defendant, said that there had been preapplication discussions in respect of those three sites and also in respect of Talbot Village. The claimant points out that the defendant accepts that the development of Talbot Village "will not commence prior to 2006 or Phase 2".

The claimant could have asked which sites were being referred to in the statement, it did not do so, and, in any event, the answer was provided in the responses.

Dealing firstly with the three sites that are mentioned in the responses, it is true that implementation was not commencing in terms of building taking place on the ground, as would have been readily apparent to anyone who was familiar with the locality. However, there had been preapplication discussions or negotiations. Had the statement referred to allocated sites which were "coming forward", or some such other phrase, then there could have been no possible complaint on the part of the claimant. Does the fact that rather than referring to preapplication negotiations the report referred to sites where implementation was commencing fatally flaw either the statement or the responses? It is important to bear in mind that such documents are not to be construed as though they were statutes. The defendant's officers were not writing an examination paper in town and country planning, much less were they required to pass that paper with a starred first.

Inevitably in challenges under section 207 the spotlight tends to focus upon a particular objection, or objections, and the council's response thereto. In considering whether a local planning authority's reasoning is adequate, it is important that any criticisms are considered against the background of the task faced by the local planning authority. In the present case the inspector reported upon hundreds of objections. In many cases his recommendation was that there should be no modification to the Plan, but he recommended scores, if not hundreds, of modifications. Many of these recommendations were relatively minor and consisted of updating, clarification or amplification, and were of little substance, but, nevertheless, the defendant had to deal with them all. It is in this context that the claimant's criticism of its reply to the inspector in relation to this particular objection has to be considered. In this context I do not accept that the reference to sites where "implementation was commencing" fatally flaws the defendant's reasoning. If preapplication discussions were resulting in higher figures than the minimum figures set out in policy H1(f), that was plainly a factor that the defendant was entitled to take into consideration in deciding whether or not the inspector's concern that the yield from Phase 1 could be optimistic was well founded. It must be borne in mind that the statement and responses were not addressed to the world at large, wholly ignorant of circumstances in Poole, but to those who had been participating in the Local Plan process. It would have been readily apparent to those with an interest in the housing allocations in the Plan that development had not actually started on the ground at, for example, the Goods Yard site.

The responses did not refer to the Talbot Village site and I do not accept the submission that because it was subsequently referred to without any further comment in Mr Spiller's witness statement and is in Phase 2 rather than phase 1, that this in some way invalidates the reasoning given in the statement and responses. As a response to the inspector's underlying concern, which was expressed in general terms, the defendant's reasoning was perfectly adequate.

The claimant made a somewhat last minute criticism of the apparent inconsistency between the defendant's acknowledgment in the statement that if the application for the Talbot Village site was granted planning permission, the lead-in time was such that development on that site would not commence prior to 2006 or Phase 2, and the note beside the asterisk in the modification to policy H1(f) that placed the site in phase 2, but said that:

It will be recalled that in the Draft Plan the Talbot Village site had been placed as straddling Phases 1 and 2. The inspector had placed the site into Phase 2, subject to the proviso about monitoring. There might conceivably have been some force in this complaint had it been advanced by those who were directly interested in the Talbot Village site, but I am not satisfied it could have had any bearing upon the defendant's approach to the claimant's site. The defendant did not share the inspector's concern that the Phase 1 sites (which by that time did not include the Talbot Village site) would not yield sufficient dwellings. Therefore, strictly speaking, there was no need to add the proviso that the Talbot Village could be released earlier if that was shown to be necessary.

One thing is certain, the defendant did not rely upon the existence of that proviso as a reason for not allocating the claimant's site for housing. It is plain from the statement that the defendant did not envisage that development would commence on the Talbot Village site before Phase 2. Whilst there is an apparent anomaly, I suspect that the explanation for the anomaly is that it is no more than an illustration of the dynamic situation referred to by the inspector. Whilst the council was happy to adopt the inspector's recommendation, by the time of the statement in October 2003 it had become clear that development at the Talbot Village site would not in fact commence before Phase 2, but the inspector's recommendation was allowed to remain, even though the proviso suggested by him had been overtaken by events.

That leads me on to one final matter, discretion. That issue would have arisen if I had felt that the reference to "implementation commencing" meant that the defendant's reasoning in the statement and responses was inadequate. For the reasons set out above, I am satisfied that it is plain which sites the defendant was referring to. It is equally clear that whilst it was relying in October 1993 and February 1994 upon preapplication discussions rather than building on those sites, planning permissions have now been granted in the case of two of the sites. The Seldown site on which a minimum of 75 dwellings was allocated in table H1(f) has planning permission for 86 dwellings. Pitwines, shown as a minimum of 430 in table H1(f), has planning permission for 504 dwellings. On the Goods Yard Site there is no permission, but preapplication discussions indicated 225 dwellings as opposed to a minimum in table H1(f) of 190. Thus, even if I had been satisfied that there was some infelicity in the council's reasoning, there would have been little point in quashing the policies and sending the matter back to the council to enable it to say, with the benefit of hindsight: "the reason we gave for not sharing the inspector's concern has proved to be justified". The point is, in any event, academic since I am satisfied, for the reasons set out above, that the defendant did grapple with the inspector's underlying concern which led him to propose greater flexibility and hence the allocation of the claimant's site.

For these reasons, this application is dismissed.

MR LEWIS: I am obliged to your Lordship. I would ask your Lordship formally to so order. My Lord, albeit that this has been a case which lasted longer than a day, I know that my instructing solicitors has prepared a summary schedule of costs. I don't think it has come to the court yet, but I have one here which I will hand up. It has gone to the other side, albeit very recently.

MR HARRIS: I make no complaint about that and I don't resist the application.

MR JUSTICE SULLIVAN: Either in principle or in detail.

MR HARRISN: As to either. I have seen the figure, I have seen the way it is broken down, we make no complaint about it. My learned friend is about to ask for his costs and he should have them.

MR JUSTICE SULLIVAN: Just to make sure I say the right figure in the order it's £12,330, yes?

MR LEWIS: Yes, my Lord, thank you.

MR JUSTICE SULLIVAN: Then the formal order is that the application is dismissed, the claimant is to pay the defendant's costs, those costs are to be summarily assessed in the agreed sum of £12,330. Thank you.

MR HARRISN: My Lord, the White Book tells me there are five good reasons why I should apply for leave to appeal now in the event that that is a prospect. My Lord, there are criteria with which your Lordship is very familiar. The only one that I can see is vaguely relevant to this application is that there are real prospects of an appeal succeeding. Given your Lordship has just given judgment, I don't hold much hope of that submission succeeding before your Lordship, but I make an application that leave be granted for permission to appeal on the housing limb of the reasons challenge for the reasons I set out in my skeleton argument. We say that that is an argument which has a real prospect of success before an appellate court. That is the application.

MR JUSTICE SULLIVAN: Thank you very much, Mr Harris. Since you very kindly, as it were, made your submissions by reference to the submissions you made earlier I will respond, as it were, in kind by reference to the reasons for the judgment I have just given. For the reasons that I have just given, I am not satisfies that there is a real prospect of success and therefore I refuse permission.

MR HARRIS: I am grateful.

MR JUSTICE SULLIVAN: Thank you very much.