Royal Courts of Justice
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE SULLIVAN
Between:
THE QUEEN ON THE APPLICATION OF CALA HOMES (SOUTH) LIMITED
Claimant
v
(1) FIRST SECRETARY OF STATE
(2) WINCHESTER CITY COUNCIL
Defendants
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Mr M Kingston QC and Mr P Goatley (instructed by Pitmans) appeared on behalf of the Claimant
Miss N Lieven QC (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant
The Second Defendant did not attend and was not represented
J U D G M E N T
MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash a decision of the first defendant contained in a decision letter of 20th February 2006 dismissing the claimant's appeal against the failure of the second defendant to give a decision within the prescribed period on the claimant's application for planning permission for residential and associated development on land at Barton Farm, Andover Road, Winchester ("the appeal site"). The appeal site is a very substantial one extending to 84 hectares. It lies between Andover Road and the London to Southampton railway line to the north of Winchester city centre. The proposals were commensurately large: for up to 2,000 dwellings, together with a local centre and other supporting facilities including a primary school and open space.
The first defendant appointed an Inspector to hold an inquiry into the claimant's appeal. The Inspector held an inquiry between 11th and 13th and 25th to 28th October, and on 1st November 2005. The Inspector's report, which recommended that the appeal should be dismissed and planning permission refused, was submitted to the first defendant on 8th December 2005.
The second defendant had indicated that it would have refused planning permission for a number of reasons, but by the time of the inquiry there were only two issues as identified in paragraph 295 of the Inspector's report:
" . . . first whether circumstances are such that, in principle, the appeal site should be released for development now and secondly, if so, whether the appeal proposal is satisfactory and in particular makes adequate provision for infrastructure."
The Inspector resolved the second issue in favour of the claimant and the first defendant agreed. However, the appeal was dismissed because the first defendant agreed with the Inspector that there was "no compelling justification for the release of the appeal site at this time" (see paragraph 29 of the decision letter).
The first issue arose because of the approach to housing provision contained in the Hampshire County Structure Plan 1996 to 2011 (Review) adopted in 2000. Having noted that "there is no area of the plan more contentious than the level of growth, and there is no area where disagreement is more dramatic than in the issues raised by the need to allocate more land for housing", the Structure Plan set out a "baseline plus reserve position". Out of the 94,290 dwellings to be provided between April 1996 and March 2011 under Policy H1, a baseline provision of 80,290 was to be made in Local Plans in accordance with Policy H2. Policy H3 identified four Major Development Areas ("MDAs"), one of which was west of Waterlooville where 2,000 dwellings were proposed.
Policy H4 is in these terms, so far as relevant for present purposes:
"In addition to the housing provision in Policy H2, a reserve housing provision will be identified in Local Plans to accommodate up to 14,000 additional dwellings in the period 2001-2011, distributed as follows:
In northern Hampshire . . . .
Winchester City (north) MDA 2000 dwellings . . . "
The policy continues:
"The need for allocations of land to be released to accommodate this reserve provision will be determined by the local and strategic planning authorities in the light of the policies in revised RPG9. The strategic planning authorities will only support the release of individual greenfield allocations to meet this reserve provision where monitoring of the Structure Plan and Local Plans indicates there is a compelling justification to do so. Issues to be considered in reaching a decision will include . . . "
By the time of the inquiry, the appeal site had been identified through the local plan process as the Winchester City (north) MDA.
Having set out the relevant strategic and Structure Plan policies, the Inspector concluded that for the period from 2001 to 2011 there was a need for 60,300 net additional dwellings in total. He then considered whether or not that net additional need would be met. Having subtracted completion between April 2001 and April 2004, he concluded that he was left with a residual requirement of 43,123 dwellings. The County Council in detailed written evidence to the inquiry had submitted that the likely supply from 2004 to 2011 was 48,229. The claimant vigorously challenged the County Council's figure. As the Inspector said in paragraph 313 of his report:
"However, the appellant has re-examined supply figures at 112 sites out of 637 in the 2004 assessment, making no change at 38 sites, but reducing yields at 72 sites and increasing them at 2 [78, 186]. The net result of this exercise was to reduce overall site yields significantly and produce a total supply figure of 41,982 which is 1,141 below the residual requirement of 43,123 [186]. If this figure were to be correct, it could well justify a release of some of the reserve land provision in Policy H4."
The Inspector's conclusions continued in paragraphs 314 to 316:
Nevertheless I am reluctant to place significant weight on the appellant's assessment. This is because (i) the detailed assessment of the 74 sites (where different figures were substituted) could not be tested, because the County Council did not attend the inquiry [187] and the City Council was not in a position to comment on sites elsewhere in the county but outside their District [78], (ii) the assessment looked at only 112 out of 637 sites and so is incomplete [78, 186], and (iii) it transpired at the inquiry that the appellant's views about the yields of some sites utilised information which post-dated the survey date of April 2004, and so was inconsistent [79]. Certainly I agree with the view of the Council that, to be reliable or conclusive, the re-assessment would have to be complete and derived from a common base date [78, 79]. The County Council's survey at April 2004 has both of those attributes and so I prefer it. Although there were some hints that other sites might become available or produce higher yields, these possibilities are speculative at this stage and I attach little weight to them . . .
All this means that the anticipated county dwelling supply from is well above the residual requirement of 43,123 and so in numeric terms there is no compelling justification for the release of the appeal site now. In those terms it would therefore conflict with policy H4 . . .
If the site is not to be released under Policy H4, it remains in the countryside, and so policies C1 and C2 apply. The proposal would also conflict with these policies [10]. However, if the view is taken that the appellant's assumptions about future land supply are to be preferred and that the release of the Winchester City (north) MDA is justified, it has now been virtually established that the appeal site is that site . . . This is because Barton Farm is identified in the emerging Local Plan as the Winchester City (north) MDA, objections to that designation have been considered at the Local Plan inquiry and the Inspector has endorsed that selection [134, 167, 207-210, 225]. This element of the Local Plan is therefore likely to proceed to adoption. So if there is a compelling justification for the release of the MDA, the appeal proposal, by providing 2,000 dwellings at Barton Farm, complies with Policy H4 in that respect."
Under the heading "Other material considerations", the Inspector dealt with a number of other matters which the claimant contended should be taken into consideration in deciding whether or not there was compelling justification to release the appeal site in terms of Policy H4. Those matters included the claimant's contention that there had been a lack of progress on the Housing Supply Action Plan ("the Action Plan"). The Action Plan was produced by the County Council following correspondence from the Minister. On 21st May 2003 Lord Rooker, the Minister of State for Housing, Planning and Regeneration, wrote to the Chairman of the Strategic Planning Joint Advisory Panel ("JAP") at Hampshire County Council:
"I am writing in response to the recent decision by the [JAP] not to release the 'reserve housing provision' in Hampshire. As you know, the Government is keen to ensure that sufficient houses are built in the south east. We have recently published Sustainable Communities, which aims to tackle the housing shortage in the south east. I am aware that in recent years house-building in Hampshire has fallen significantly below the target set out in RPG9. I note that the report on Policy H4 estimates that completions in the County will rise, and that the RPG 9 target will be met by 2011.
I am encouraged by some of the work you are doing on completions, and that you have set out for the districts a number of actions that need to be taken in order to increase the provision of housing. This approach is in line with our call for local authorities to play an enhanced role in meeting housing needs. However, I want to emphasise that I see it as vital that these actions deliver an increase in housing completions. I expect to see significant improvement in the performance of Hampshire set out in the next report, in line with your estimates. I will be prepared to intervene if this does not occur. I will also consider intervention if improvement is being held back by the approach of particular districts to meeting their housing requirements. I hope that districts will present progress reports at future meetings of the Panel."
Mr Kingston QC on behalf of the claimant pointed out that the letter is silent as to what the Minister meant by "intervention", but it is a fair inference that that intervention could at least include granting planning permission for residential development on appeal.
The Minister was supplied with the draft monitoring report for consultation prepared by the JAP in early 2004, and responded in a letter of 3rd February 2004:
"I am writing about housing provision in Hampshire in the context of the latest report on Policy H4 of the Structure Plan.
Last year Lord Rooker wrote to Cllr Estlin, Chairman of the Joint Advisory Panel. He emphasised the need to improve performance in tackling the shortfall in house-building. Given the low level of completions in the south east, and the fact that Hampshire continues to deliver less housing than is needed to meet RPG 9, my officials have closely scrutinised the latest report. I am advised that the evidence does not support the conclusions in the report, and therefore the release of some or all of the reserve position is necessary in order to ensure that Hampshire's housing allocation is met.
I am particularly concerned that insufficient progress has been made on local plans and large sites. Assumptions about significant increases to the levels of development within urban areas also appear to be over-optimistic. My officials have discussed these concerns with officers from the County Council.
Before I finalise my view on this matter, I would welcome an opportunity to discuss this issue with you . . . "
Following discussion, the Minister wrote to the leader of Hampshire County Council on 9th March 2004:
"Firstly, I would like to thank you and your colleagues for taking the time to see me on Monday. It was extremely useful to me to hear first hand of your commitment to meeting Hampshire's housing needs and taking seriously the uncertainty surrounding future housing supply in the County. I also recognise the significant contribution that Portsmouth and Southampton plan to make.
You have agreed to prepare an action plan, which I would like to agree with you within a month. I would be grateful if you could work with GOSE in preparing the plan. However, to provide me with the confidence that housing will be delivered, the plan must include:
• A set of milestones which, if not met, would automatically trigger release of some of the reserve in 2005 (as a minimum these should include had the five-year land supply and approval of applications for the MDAs).
• Details of the amount and location of the reserve to be released, linked to the triggers set out above.
• Your agreement that Hampshire County Council will, post commencement of the Planning Bill, continue to monitor and implement Policy H4 of the Structure Plan.
Like you, I place great importance on the delivery of housing in Hampshire. I hope you will agree that the action plan needs to be robust. The measures will need to be implemented by Local Authorities in Hampshire speedily, in order to obviate the need to release the reserve, at least until we are able to consider the results of the next monitoring report.
Finally, I take very seriously your comments about the role of the Government and its agencies. I therefore expect the plan to explore how the Government Office can help in lifting barriers to delivering housing . . . "
The following day the JAP of Hampshire strategic authorities -- Hampshire, Portsmouth and Southampton -- agreed to produce an Action Plan. The Action Plan was approved by the strategic planning authorities on 7th June 2004 and passed to the Minister for his consideration. The plan set out two types of actions: outcomes and processes. Outcome Actions were those which directly affected the housing supply. Process Actions analysed the accuracy of forecasts, refined monitoring assumptions and were intended to create greater confidence in the estimates of future supply to be used in the next Policy H4 Monitoring Paper. The Action Plan said this:
"Success against the targets set out as outcome actions will be reported to the Strategic Authorities' Joint Advisory Panel (JAP) meeting in Spring 2005 and will, along with the conclusions arising from the Policy H4 Monitoring Paper 2005, help inform JAP's deliberations on whether the release of the reserve is required. In striving to meet the agreed targets Councils are not expected to compromise on their design standards. The Outcome Actions are weighted and, if the Hampshire authorities fall short on actions OA1-OA10, this (in tandem with the conclusions of the Monitoring Paper) is likely to lead officers to recommend to Members that a release of reserve housing, on the basis of approved Supplementary Planning Guidance, would be necessary. If a release was not made under these circumstances, Members would be placing themselves in conflict with the Minister of State for Planning and Housing."
The various Outcome Actions are then set out in tabular form with columns indicating the action required, by what date, and what the target is. Thus, in respect of Outcome Action 5, the action required was:
"Resolution to grant outline consent for the whole of the allocated MDAs at West of Waterlooville and Andover subject to appropriate agreements, receipt of a favourable report from Local Plan Inquiry Inspector and in accordance with an agreed masterplan . . . "
Those responsible were Winchester City Council, Havant Borough Council and Test Valley Borough Council. The date given was 31st December 2004 and the target was that the action should be implemented.
The Minister responded on 29th June 2004 saying:
"Thank you for your letter of 14th June, enclosing a copy of your Housing Supply Action Plan. I am pleased that you have been able to prepare a comprehensive plan in a short space of time. I am conscious of the resources you are willing to commit to implementing the plan and am grateful for your confirmation that you will continue to monitor Policy H4.
I have considered whether the proposed actions are sufficient to deliver the housing needed in the County, and therefore obviate the need to release any reserve sites this year. The plan clearly deals with two of my key concerns: firstly, raising the level of permissions will improve the prospects for delivery of housing. Secondly, testing of assumptions will increase the certainty that your estimates of supply will be met.
I can confirm that in the light of the plan, I am satisfied that you are taking appropriate actions to address the shortfall in housing delivery. However, we will need to look afresh at the issue of release of any reserve sites in light of the actions taken and their outcome. My officials will be monitoring progress on the action plan and it would be useful if you could let me have a brief update on progress in about six months time. The rise in completions in Hampshire is encouraging, and I hope this level will be maintained. I am sure you agree that it is important that we meet the urgent needs of those seeking a home . . . "
Monitoring continued and a progress report was sent to the Minister in January 2005. That set out in tabular form where action had been completed, where it was half or more complete, where no action had been taken, where action was less than half complete, and where no progress had been made. Thus, in respect of Outcome Action 5, the report summarised the progress made as follows:
"Outline applications received for Andover MDA. Permission expected to be granted in winter 2005/06, subject to a favourable report from the Local Plan Inspector.
Outline application not yet received for west of Waterlooville -- expected imminently".
The final column stated that this was an Outcome Action where the action was half or more complete or the majority was complete.
The progress report was published and the claimant wrote to the Minister on 27th January 2005. That letter referred to what had been said in the letter of 9th March 2004; that is to say that an Action Plan must include a set of milestones which, if not met, would automatically trigger release of some of the reserve in 2005, and continued:
"Following publication of the 2005 Annual Monitoring Report it is now possible to assess performance against the Action Plan and to determine whether the authorities have achieved their mandatory targets.
As you will be aware the Plan contains 18 separate Outcome Actions, which directly affect housing supply and 11 Process Actions that analyse the accuracy of forecasts. It is the former that are critical to any decision whether or not to release the reserve component.
I propose to consider briefly the relevant Outcome Actions (OA) 1-10, which are identified in the Plan as those that will determine whether or not a need to release exists. The results below demonstrate that the mandatory targets have not been achieved and therefore automatic release of some of the reserve should now take place."
The letter then examined each of the Outcome Actions, explaining where, in the claimant's view, the target had not been achieved. Thus, one finds in respect of Outcome Action 5 the claimant saying that the target was:
"Resolution to grant outline consent for the whole of the allocated baseline MDAs at west of Waterlooville and Andover subject to appropriate agreements, receipt of a favourable Local Plan Inspector's report and agreed master plan by 31st December 2004."
The claimant contended that the result was:
"The Plan indicates that the action has been implemented. However in neither case has an application been reported to Committee and in the case of west of Waterlooville no application has been submitted or is imminent. It is therefore not possible that a resolution to grant consent has been taken. Alternatively, if such a resolution has been made in the absence of an application it is meaningless in terms of expediting housing supply.
Target not achieved."
The leader of Hampshire County Council wrote to the Minister on 22nd February 2005, enclosing the report. The letter explained:
"In summary, of the 18 Outcome Actions listed in the Plan:
• 6 have been completed in full
• 9 are 50 per cent or more complete
• 2 are less than 50 per cent complete
• 1 action has not been triggered and is not therefore capable of being measured."
The letter then went through a number of the Outcome Actions, saying, for example:
"The majority of local plans and local development documents are still on schedule, or within a month of schedule (OA4). Six have slipped by more than one month, but two of these are local development documents which will not in any event provide site allocations within the next few years. One local authority has brought forward its Local Plan adoption date, even though it has reported a delay to the start of its inquiry. All authorities still expect to adopt their Local Plans by July 2006.
Slippage has also been reported in two of the four major developments planned for Hampshire. The county is, however, fortunate that planning permissions for development on urban capacity and windfall sites continue to come forward at a significant rate to fill the gap. Some interested parties have argued that the supply from these sources will dry up but there is no evidence at present to support such a view. The issue will be raised at the meeting of the Joint Advisory Panel on 2nd March 2005 . . . "
The letter concluded by saying:
"Having regard to the overall supply position for the county, the general progress on implementing the Action Plan and the availability of the reserve the officer recommendation to be considered by JAP in March is that there is no compelling justification to release any of the reserve in 2005."
The Minister responded to the letter from the County Council on 3rd March 2005:
"Thank you for your letter of 22nd February 2005 regarding the Hampshire Housing Action Plan. I appreciate the work that your staff have put into producing this, at a time when they are also busy assisting the Regional Assembly with the RSS.
I am pleased to see that housing delivery improved significantly in Hampshire last year. I accept that the actions which have been completed, and evidence presented in the monitoring report, mean that there is no need to release the 'reserve' this year.
However, as I mentioned last year, it is the long term position that remains uncertain. I have therefore asked the Government Office to work with your officers to revise and update the plan to reflect progress over the coming year. I would be grateful if you could report back to me again in a year's time.
Once again, I would like to thank you and your officers for undertaking this work. Hampshire sets a fine example in collecting and presenting information on housing supply and delivery."
The claimant wrote to the Minister on 14th April 2005 saying:
"I wrote to you on 27th January 2005 raising a number of concerns regarding the inadequate performance of the Hampshire authorities against the significant targets set out in the Housing Supply Action Plan. I attach a copy of this letter for your information.
Almost three months have elapsed since you received this letter and I would now very much appreciate your considered response to the points raised within. I do not wish to revisit the concerns raised to date but assure you our scepticism as to the Government's determination to tackle the housing crisis grows each time recalcitrant authorities such as Hampshire are allowed to manipulate housing supply figures to meet their own political ends."
There was no reply from the first defendant to the claimant's letters of 22nd February and 14th April 2005, but by the time of the inquiry in October 2005 all parties had become well aware of the letter dated 3rd March 2005. Unsurprisingly, both the County Council and the second defendant relied on it while the claimant challenged the basis on which it had been written, contending in effect that the information supplied to the Minister by the JAP had not been accurate.
In respect of this issue, the Inspector concluded in paragraphs 321 and 322:
Of the other OAs, only four had been fully met and I note that the progress on individual OAs is not necessarily expressed in the same way as is the desired Action [190]. For instance, the action required under OA5 was a 'resolution to grant outline consent on two MDAs' but the progress records that applications were received on one of them, and not yet of the other [190]. Nevertheless, I doubt that the Minister was misled by the tabular form of the report or the way in which it was presented. In any case a covering letter in February 2005 explained, in summary, that of the 18 Outcome Actions, six had been completed in full, nine were 50 per cent or more complete, two were less than 50 per cent complete, and one was not relevant at that time [83], so he could not have misunderstood that most OAs had not been fully met.
Nevertheless, the Minister accepted in March 2005 that the actions which had been completed and the evidence in the 2005 monitoring report meant that there was no need to release the reserve this year, despite the objections expressed previously by the appellant [87,89]. In my view this acceptance must be given substantial weight. Even though the Minister's response was sent promptly there is no evidence that the progress report did not receive due attention, and he had been acquainted with the appellant's views about the performance against the Action Plan a month previously in January [88]. However, I draw attention to the view of the appellant that it would be not be rational of the Minister or Secretary of State to set targets and then not to take action if they were not met [188]."
In his summary conclusions, the Inspector said this:
On the basis of my interpretation of the RPG 9 housing requirement for the county from 2001-2011, and my acceptance of the past housing completion rates and the future supply put forward by the Council, I consider that, in numeric terms, there is no compelling justification for the release of the appeal site now . . .
The appellant contends that other material considerations need to be taken into account in reaching a decision on this issue. They comprise (i) the Housing Supply Action Plan . . .
I appreciate that of the 18 Outcome Actions in the Housing Supply Action Plan, six had been completed in full, nine were 50 per cent or more complete, and two were less than 50 per cent complete at January 2005. Nevertheless, in March 2005 the Minister concluded that the actions which had been completed and the evidence in the 2005 monitoring report meant that there was no need to release the reserve this year. This recent expression of a Ministerial view must be given significant weight, especially as there is no evidence that that view was reached without due care. Consequently I do not consider that this particular matter could outweigh the development plan conflict."
In the decision letter, the first defendant said:
The Secretary of State considers that the JAP's conclusions, which help inform him of the need to release the Structure Plan H4 reserve, are a material consideration that can be given weight. However, in determining the appeal, he has taken into account all the evidence before him, in addition to that offered by the JAP . . .
The 2005 Monitoring Paper showed that completions across Hampshire for the period 2001-2004 were 17,177 against the RSS requirement of 18,090 and that the remaining requirement for the period 2004-2011 was therefore 43,123 dwellings. The Secretary of State agrees with the Inspector's conclusion that there is no information to suggest that the figures in the 2005 paper were likely to be wrong. The 2005 paper indicated that to 2011 there would be a total available supply of 55,070 dwellings, adjusted to a forecast figure of 48,229 . . .
The Secretary of State considers that both the 2005 and 2006 JAP Policy H4 Monitoring Papers place a heavy reliance on all allocated sites coming forward as well as Major Development Areas, urban capacity sites and windfall sites. He is concerned about the reliance that is being placed on sites without planning permission and on large urban capacity and windfall sites coming forward. Although he agrees with the Inspector that the estimates of future supply allow for a reasonable error or safety margin (IR312), he concludes that housing proposals must come forward or the H4 reserve provision will need to be released."
Under the heading "Appellant's assessment of housing supply", the first defendant said this:
The Secretary of State has considered the appellant's assessment of future housing supply across Hampshire (IR313), which suggested that the residual requirement for housing to 2011 would not be achieved. He shares the Inspector's reluctance to rely on this assessment for the reasons given at IR314 . . .
The Secretary of State considers that it was reasonable, at the time of the inquiry, for the Inspector to attach significant weight to the March 2005 letter from the former Minister for Housing and Planning regarding progress on the Hampshire Housing Action Plan (IR319-322). However, in determining the appeal, the Secretary of State has given the letter only limited weight as 11 months have passed since it was written. Further, as this letter related to a specific monitoring period, he considers no inference can be drawn that this will still be the position in future years. Indeed, in this respect he is aware that the Hampshire planning authorities will be required to provide an update on progress with the Action Plan shortly, in addition to the 2006 JAP Policy H4 Monitoring Paper."
The "Conclusion on H4 reserve site release" reads:
The Secretary of State agrees with the Inspector's conclusion at IR315 that, in numeric terms, there is presently no compelling justification for the release of the appeal site. He agrees with the Inspector therefore that, in those terms, the proposal would conflict with Structure Plan Policies H4, C1 and C2, with Local Plan Policies C1, C14 and H3 and with Policy C1 of the emerging Local Plan. He has therefore considered whether there are any other material considerations which could outweigh these conflicts with the Development Plan."
Having carried out that exercise, the Secretary of State remained of the view that there was "no compelling justification to release the appeal site at this time".
On behalf of the claimant, Mr Kingston QC challenged the defendant's decision on two grounds. Firstly, the first defendant had failed to follow the policy which had been set out in the letter dated 9th March 2004, namely that any housing Action Plan must include a set of milestones which, if not met, would automatically trigger the release of some of the reserve sites, and the first defendant had failed to explain why he had not appeared adhered to that policy. The complaint was put in various ways, in terms of legitimate expectation, irrationality, failure to have regard to the March 2004 policy, and failure to give reasons for departing from what was said to be the policy. Secondly, it was submitted that the first defendant had rejected the claimant's assessment of the housing supply position on a basis that was erroneous in a number of respects.
In my judgment, there is no force in either of these criticisms of the decision letter for the following reasons. The letter dated 9th March 2004 set out what the first defendant required at that time to be included in an Action Plan which was to be prepared by the strategic planning authorities. It is clear from the Action Plan, which those authorities produced for the Minister's approval in June 2004, that whatever else it contained it did not contain a set of milestones which, if not met, would automatically trigger the release of some of the reserve in 2005. Perhaps unsurprisingly, a less draconian and more flexible position was adopted in the Action Plan. Provision was made for a more judgmental exercise. If the Hampshire authorities fell short on Outcome Actions 1 to 10 then this, in tandem with the conclusions of the Monitoring Paper, was "likely to lead officers to recommend to members that a release of reserve housing on the basis of approved supplementary planning guidance would be necessary". The Action Plan did not state that falling short on any one of Outcome Actions 1 to 10 would lead to such a recommendation, much less would it automatically trigger the release of some of the reserve. Thus, on its face, the Action Plan submitted for the Minister's approval raised the question: how far did the authorities have to fall short on Actions OA1 to OA10 before officers were likely to recommend to members that a release of reserve housing was necessary?
On 29th June 2004 the Minister made it plain that he had accepted that Action Plan. Thus, the Minister had already moved away from the highly prescriptive and somewhat draconian requirement that there should be a set of milestones which, if not met, would automatically trigger the release of some of the reserve in 2005. The letter of 29th June 2004 sought an update on progress in six months' time. When that update was received it must have been plain to the Minister that not all of the Outcome Actions 1 to 10 had been completed. Not only did the County Council state explicitly that six of the 18 Outcome Actions had been completed in full, with nine being 50 per cent or more complete and two less than 50 per cent complete, the claimants themselves told the Minister that in their view a number of the Outcome Actions (including, for example, Outcome Action 5) had not been completed by the due date.
It was, therefore, a question for the Minister's planning judgment as to whether he regarded the progress reported to him as being sufficient so that there was no need to release the reserve sites in 2005. His conclusion, as set out in the 3rd March 2005 letter could not be said to be an irrational response to the updated information that was supplied to him. As I have indicated, the somewhat prescriptive formula set out in the 9th March 2004 letter had been abandoned as long ago as June 2004, when the Minister had approved the Housing Supply Action Plan that had been sent to him. The first defendant had been perfectly entitled to moderate the approach set out in the letter dated 9th March 2004. His approach in response to the progress -- or, as the claimant would have it, the lack of it -- as reported in the progress report was clearly set out in the letter of 3rd March 2005. There can be no question of unfairness or breach of legitimate expectation. The application for planning permission was submitted on 26th February 2004, prior to the letter of March 2004. By the time the application had gone to appeal and an inquiry had been arranged in October 2005, the first defendant's up to date approach, as set out in the letter of 3rd March 2005, was well known to all parties, and its merits were ventilated extensively at the inquiry.
The March 2005 letter dealt with the question of release of the reserve sites in 2005. By the time of the decision letter on 20th February 2006, matters had moved on. As the first defendant said in the decision letter, 11 months had passed since the March 2005 letter was written. In those circumstances, it was not unreasonable to give that letter only limited weight and to look at the more up to date information on housing supply that had been obtained at the inquiry and was set out in the Inspector's report in order to decide whether there was a compelling justification for the release of the appeal site.
Looking at the matter in numerical terms, if the County Council's supply figures were accepted, there was not such a justification. That leads me, therefore, to the second ground of challenge. I have read paragraph 314 of the Inspector's conclusions. Those conclusions cross-refer to the paragraphs in the report where the Inspector summarised the parties' cases on the various issues. In order to understand the Inspector's conclusions, it is very important to see the context in which they were reached.
The second defendant was contending that the claimant's assessment of forward supply suffered from "two fundamental flaws":
First, it is not comprehensive. Whilst the initial stage I looked at all of the sites in County Council's Monitoring Information for 2004 (CD/CC/8) the claim (expressed at the inquiry) was 'to identify where the over-optimism had occurred' and only those sites where there were thought to be doubts about delivery or suitability were selected for further analysis. There was no further scrutiny of the remaining sites (by far the greater proportion, ie, 525 out of 637). An independent appraisal would of course have to review the circumstances of every site, but it would not be reasonable to expect the Council to examine such evidence, which would require a detailed assessment of the circumstances of sites far beyond the District boundaries. The appellant acknowledges that for those sites which were subject to further scrutiny the capacity increased in two cases (representing some 128 additional dwellings at RPS sites 10 and 31). Whether these adjustments were correct is not the point. What matters is that there was no similar exercise undertaken for the remaining 525 sites, so that there is no means of knowing if capacity would have increased on any of those sites and if so by how much. The appellant conceded at the inquiry that 'if we had done the detailed survey of the 525 we may have made further adjustments'. It is no answer to this concession to say that the County Council is not suggesting any increase should be made. The point is that if there is to be re-appraisal of the assessment in CD/CC/8, substituting the RPS judgment for that of the County Council, it needs to look at all of the sites on an equivalent basis. Otherwise it is not a re-appraisal, but simply a 'cherry picking exercise' with no claim to validity.
The second flaw is it that the basis of making recent adjustments was to utilise information which was not available at the base date and which therefore should not have been taken into account. The information sought from local authority officers related to the current position in summer 2005 when the work was done and did not solicit their views as at the base date. The appellant expressly accepted at the inquiry that 'there are some sites where the figure is not that at April 2004 -- having been influenced by subsequent events'. This can be clearly seen in relation to the very first two sites in the assessment (sites 1 and 2). It is confirmed and conceded in relation to site 25, where there is actually an RPS view shortly after the base date (Document WCC 2, Appendix 4 paragraph 4.14) which is not materially different from the figure ultimately assumed in the Monitoring Paper. Once it is clear that the RPS exercise has relied on the benefit of hindsight, it loses all credibility as a means of undermining the 2005 Monitoring Paper. If later information is to be taken into account there can be no basis for looking only at the historic supply of sites as at April 2004. All up to date matters affecting the overall supply would need to be considered . . . .
All in all, the exercise presented is of no real value. It is perhaps not surprising that the appellant chose not to present it to the County Council's monitoring officers in advance of the inquiry to see if its contents could be agreed."
The claimant's response to this criticism of its exercise is to be found in paragraphs 186 and 187 of the Inspector's report:
The appellant has objectively assessed the extent to which the H4 monitoring process has been properly carried out in relation to future housing supply. The Council and County Council consider the process to be essentially a self selecting process, which was partial and therefore inadequate. It is unfortunate that neither Council has apparently understood the appellant's evidence (Document A2 at paragraphs 6.37 to 6.51 or Document A5 Appendix 16). This makes clear that all identified sites were considered, the results on some were accepted, and others were then subjected to further investigation. Of those selected for further investigation, 38 were not pursued because the County Council's assessment was agreed, but in respect of 74 sites there was disagreement, with a reduced capacity on 72 and an increased capacity on 2. The evidence (paragraph 6.45) explicitly points out that the appellant does not take issue with some 88 per cent of the County Council's assumptions, but the consequences of the 12 per cent of sites were issue is taken are significant for the reasons identified. The result is to reduce likely dwelling supply to 41,982 and demonstrate that the Policy H4 monitoring process contained in the most recent Monitoring Paper is not sound and cannot be relied upon.
It seems that the exercise which has been undertaken by the appellant is the first detailed appraisal of all of the County sites. Contrary to the County Council's view, the approach taken is comprehensive and consistent and entirely transparent. The appellant's information was available to the County Council but there is no evidence from that Council that any individual site yield should be increased. This is the first occasion on which the Secretary of State will have had the process tested. As the County Council did not attend the inquiry and submit their evidence to cross-examination, both their evidence and the approach should carry less weight."
Mr Kingston made three criticisms of paragraph 314 of the Inspector's report. First, he submitted that the Inspector was not entitled to reject the claimant's assessment simply because it had not been tested by some other party. It was up to the Inspector to test the evidence for himself, and if he had been in any doubt then he could and should have called the County Council to give evidence at the inquiry.
In my judgment, that criticism of the Inspector's approach is unrealistic given the way in which both parties were putting their cases to the Inspector. From the passages which I have just set out, it will be recalled that the second defendant was saying that it was not surprising that the appellant chose not to present its assessment to the County Council's monitoring officers in advance of the inquiry to see if its contents could be agreed, whereas the claimant was arguing that the material had been available to the County Council but there was no evidence from the County Council that any individual site yield should be increased, and since the County Council did not attend the inquiry and submit its evidence to cross-examination then its evidence and approach should carry less weight.
It is plain that the County Council maintained its position in its written submissions to the inquiry. It seems that neither party, no doubt for their own tactical reasons, asked the Inspector to request the County Council to attend the inquiry, much less did either party invite the Inspector to issue a witness summons requiring the County Council to attend the inquiry. Each was content to rely on -- alternatively to criticise -- the evidence of the County Council that had been presented in writing. It was for the Inspector to decide what weight he thought it appropriate to attribute to that evidence. It was open to him to say, as one of the reasons for not giving significant weight to the appellant's assessment, that it related in part to sites outwith the area of the second defendant and so could not be tested in the absence of the County planning authority.
Mr Kingston's complaint might have had some force if this was the only reason why the Inspector was reluctant to place significant weight on the appellant's assessment, but it is plain when one reads the remainder of paragraph 314 that this was not the only, nor even the main reason for the Inspector's approach on this issue. The Inspector's main reasons for preferring the County Council's figures were that, in effect, he agreed with the two criticisms of the claimant's approach that had been advanced by the second defendant; namely that the reassessment was not complete and was not derived from a common base date (see paragraphs (78) and (79) of the report, above):
"Certainly I agree with the view of the Council that to be reliably conclusive the re-assessment would have to be complete and arrive from a common base date. The County Council's survey in April 2004 has both of these attributes and so I prefer it."
It was for the Inspector to decide whether he preferred the appellant's assessment or the County Council's. Which was to be preferred was pre-eminently a matter for the Inspector's planning judgment, and the two reasons that he gave are entirely rational reasons for preferring one assessment rather than the other.
Mr Kingston submitted that the Inspector's statement that the appellant's assessment "looked at only 112 out of 637 sites and so is incomplete" was inaccurate. The appellant's assessment had looked at all 637 sites rather than simply 112. He pointed to various passages in the appellant's evidence to that effect. The Inspector was in no doubt that that was the claimant's evidence. He recorded it in the paragraphs which are referred to in parenthesis in paragraph 314, namely, paragraphs 78 and 186. It will be recalled that paragraph 78 records the second defendant's submission that while all 637 sites were looked at by the claimant in stage one of its assessment, only those sites where there were doubts about delivery or suitability were selected for further analysis in accordance with the aim which had been expressed at the inquiry "to identify where the over optimism had occurred". Given that this was the nature of the exercise, the second defendant criticised it as a "cherry picking exercise". Understandably, the claimant did not agree with that criticism of the process that it had carried out (see paragraph 186 and 187 of the Inspector's report).
Having considered the rival contentions, the Inspector agreed with the second defendant's criticisms. He was entitled to do so as a matter of planning judgment, just as he was entitled to agree with the second criticism advanced by the second defendant as to the base date for the re-assessment. In his skeleton argument, Mr Kingston submitted that it was to be inferred that this criticism related to only six sites, and he contended that altering the yields in respect of those sites would make no material difference to the outcome. However, this court is not the place to resolve what was obviously a hotly disputed issue whether the claimant's reassessment of the housing supply figures should be preferred to that of the County Council, as relied on by the second defendant. Having considered the two assessments and each parties' criticisms of the other's assessment, the Inspector stated quite clearly that he preferred that of the County Council. He was entitled to do so for the principal reasons that he gave, namely completeness and a common base date. Ground two, although attractively presented, is, in my judgment, no more than an attempt to re-argue an issue which is essentially one of planning expertise rather than planning law.
It follows that the first defendant was entitled in paragraph 22 of the decision letter to agree with the Inspector's approach in paragraph 314 of the report which was in effect to prefer the County Council's survey to the claimant's survey. For these reasons, this application must be dismissed.
MISS LIEVEN: Thank you, my Lord. In those circumstances if I could ask your Lordship to dismiss the application and to award the first defendant their costs to be summarily assessed in the sum of --
MR JUSTICE SULLIVAN: I believe I was given a summary.
MISS LIEVEN: Yes. It has been agreed, my Lord. It is £9,060.
MR JUSTICE SULLIVAN: Can you confirm that, Mr Kingston, that there is no objection in principle and the amount agreed?
MR KINGSTON: I do.
MR JUSTICE SULLIVAN: So the application is dismissed, the claimant is to pay the first defendant's costs summarily assessed in the agreed sum of £9,060. Any more? Thank you very much indeed.