Matthews, R (on the application of) v Tamworth Borough Council

This is an application under section 287 of the Town and Country Planning Act 1990 to quash part of the Tamworth Local Plan which was adopted by the defendant, Tamworth Borough Council, on 6th July 2006. The part of the Local Plan which the claimant seeks to quash consists of policy EMP1 and policy EMP2, together with the elements of the Proposals Map relating to policy EMP2.

The claimant is the owner of a greenfield site known as the Bonehill Road Extension site ("the Bonehill site") which was one of the sites allocated in policy EMP2 of the Revised Draft Local Plan for employment land with an area of 15 hectares. The other greenfield site also allocated in policy EMP2 was the Anker Valley site with an area of 27 hectares. Policy EMP1 of the Revised Draft Local Plan made provision for a total of 64.4 hectares of employment land, of which the Bonehill site formed part.

There was a public inquiry into objections to the Draft Revised Local Plan which was held between January and May 2005 by an Inspector whose report and recommendations were received by the Council in October 2005.

At the inquiry the Council supported the allocation of the Bonehill site and the Inspector, having considered the objections to the site, concluded that the allocation should be retained.

This application relates to what happened thereafter because, when the Council came to consider the Inspector's recommendations, it decided not to accept his recommendation relating to the Bonehill site. It decided to delete the Bonehill site and also the Anker Valley site. It decided to do so for a number of reasons, the main reason being that the site was not needed. It based that conclusion, in the main, on what the Inspector had said when dealing with employment land provision. It is necessary therefore to look with some care at what the Inspector said.

The Inspector dealt with general considerations relating to employment land provision in paragraphs 5.1.1 to 5.1.6 of his report. It is necessary to quote in full paragraphs 5.1.2 to 5.1.6:

The Council subsequently placed particular importance on paragraph 5.1.6 when deciding to delete the Bonehill site and other sites.

The Inspector dealt separately with the Bonehill site in paragraphs 5.5.1 to 5.5.8 of his report. It is only necessary to quote paragraph 5.5.3 where the Inspector stated:

The Inspector then went on to consider some amenity objections to the site and concluded that the allocation should be retained.

In paragraph 5.6 of his report (which, by reference to paragraph 5.1.1, he reiterated when dealing with section 5.5 of his report), he dealt with a site known as the Coton Lane site, which he recommended should be deleted from the Plan, stating in paragraph 5.6.1:

Finally, so far as the Inspector's Report is concerned, the Inspector, in his letter to the Council accompanying his report, gave a summary of his conclusions on the main controversial issues. In dealing with employment land supply and the Coton Lane employment site, he stated:

I turn then to deal with the Council's consideration of the Inspector's recommendations relating to the issue of employment land.

Section 10 of the report to Cabinet of 23rd January 2006 dealt with that issue. In paragraph 10.1, reference was made to the Inspector's conclusion that a modest shortfall of employment land provision compared to the structure plan requirement of 120 hectares would be acceptable. In paragraph 10.2 the report quoted the penultimate sentence of paragraph 5.1.6 of the Inspector's report, which I have already quoted. In Paragraph 10.3, reference was made to the importance which the Inspector attached to a reasonable range and choice of sites. Paragraph 10.4 referred to committed sites which met the criteria for the three categories of sites referred to in the Regional Spatial Strategy as sub-regional, good quality and other employment sites, together amounting to 24.27 hectares. Paragraph 10.5 referred to two re-allocated sites coming within the good quality category, increasing the portfolio of land to 33.17 hectares.

Paragraph 10.7 of the report stated:

Finally, so far as that report is concerned, I should quote paragraph 10.8 in full:

Attached as Appendix 1 to that report was a Summary Schedule of the Inspector's recommendations with the Council's response to them. Dealing with the Inspector's recommendation that there should be no modification to the Bonehill site allocation, the Council's response was:

Section 14 of a report to Full Council dated 10th April 2006 dealt with the issue of employment land. Paragraphs 14.1 to 14.3 of that report stated as follows:

Finally, so far as the modifications are concerned, Policy EMP1 of the adopted Local Plan stated:

That figure of 4 hectares for provision on allocated sites is to be compared with the figure of 64.4 hectares in policy EMP1 of the Revised Draft Local Plan. At a later stage, that figure was updated to 50.8 hectares at which stage it was described as a "modest" shortfall below the Structure Plan target which was considered to be acceptable.

The claimant's challenge related not only to the Council's decision to modify the Plan by deleting the Bonehill site but also to the Council's decision not to hold a further inquiry relating to that proposed modification. In its objection to the proposed modification dated 23rd March 2006, the claimant requested a further public inquiry in relation to what it described as a significant change in the strategy of the Local Plan.

In fact, the question of whether objections to the proposed modification might justify a further inquiry had already been considered by the Council before any objections had been made. The report to Cabinet dated 23rd January 2006 contained the followed paragraph when dealing with the implications of the report:

The same sentiment was expressed in paragraph 8.1 of the report when it was stated:

The relevance of the reference to no delay being envisaged is to be found in paragraph 2.1 of the report, where it was stated:

In the report to Full Council dated 10th April 2006 dealing with the representations received on the proposed modifications, paragraph 2.1 referred to "the key date" of 21st July 2006, stating that if the Plan were not adopted by then, it would be more appropriate to abandon the Plan because it would have to be the subject of a Strategic Environmental Assessment. Paragraph 3.1 stated that it was "imperative" that the adoption of the Local Plan was not delayed beyond 21st July 2006 because it would result in a policy void.

Finally, paragraph 14.4 of that report dealt with the issue of a further inquiry, stating:

The claimant's case relating to the decision to modify the Local Plan by deleting the Bonehill site was, in essence, that it was a radical change made in a way that was unlawful because, firstly, it misconstrued the Inspector's report; secondly it gave reasons which were wrong, not clear or cogent and were not supported by the Inspector's recommendations; thirdly, it was not in conformity with the Structure Plan; and, fourthly, it was not supported or prompted by the Regional Spatial Strategy ("RSS").

So far as the first ground of challenge is concerned, it was submitted that the Council's reliance on the Inspector's conclusions in paragraphs 5.1.3 and 5.1.6 of his report that historic take-up rates would lead to half of the employment land supply being sufficient was misconstrued because it was simply an illustration provided in the context of justifying a moderate under-provision in relation to the Structure Plan requirement and was not intended to justify a radical deletion of half of the Structure Plan requirement.

The Council's answer to this point was to rely on the Inspector's statement in paragraph 5.1.3 of his report that, when considering whether the land allocation figures significantly exceeded or under-provided the Structure Plan requirement, what is "significant" has to be judged pragmatically and that, on the Inspector's analysis in paragraph 5.1.6 of his report, adopting a pragmatic approach, a reduction in half of the employment land provision would not be a significant under-provision and would be in conformity with the Structure Plan.

Whilst I can understand the force of the Council's reliance on paragraph 5.1.6 of the Inspector's report, I am not convinced that the Inspector was intending what he said to be construed in the way in which the Council have construed it so as to justify what is, without doubt, a radical change in the Plan so far as employment land provision is concerned, involving a reduction in employment land provision to almost half of the Structure Plan requirement. If the Inspector had intended what he said to justify what the Council subsequently decided, he would have logically recommended the deletion of the Bonehill site which had been the subject of objection by other parties at the public inquiry. Not only did he not do so, but he positively recommended that it should be retained for the reasons given in paragraph 5.5.3 of his report where he concluded that it was reasonable to describe the site as a high quality site which had a greater chance than most other sites in Tamworth of attracting clients with an international/national/regional choice of location. That conclusion reflected the Council's evidence in paragraph 3.28 of its Topic Paper on employment, which was before the Inspector, where the Bonehill site was described as a "key site" in the portfolio of sites to attract a variety of potential developers and businesses to Tamworth.

Even if I were wrong that the Council had misconstrued what the Inspector said in paragraph 5.1.6 of his report or had taken it out of context, I can find no mention in the Council's consideration of the proposed deletion of the Bonehill site of the positive attributes of the site as identified previously by the Council or as identified by the Inspector, namely that it was a key high quality site which had a greater chance than most other sites in Tamworth of attracting clients with an international/national/regional choice of location. On any view of the matter, those must be highly material considerations when deciding whether or not to retain the site, but I can find no mention of them in the report to Cabinet or to the Full Council. In my view, that constitutes a failure to take into account relevant considerations when deciding to delete the site.

It seems to me that the claimant is right in saying that the Inspector's remarks in paragraph 5.1.6 of his report were made in the context of justifying a moderate under-provision in relation to the Structure Plan requirement of 120 hectares. As he said in paragraph 5.1.4 of his report, an approach which resulted in a moderate shortfall below the 120 hectare figure would not, in his view, be out of conformity with the Structure Plan. What has happened, as expressly acknowledged by the Council in policy EMP1 of the adopted Local Plan, is a provision which constitutes a significant shortfall below the Structure Plan requirement.

The claimant's second ground on this part of the case relates to the reasons given by the Council for the modification to delete the Bonehill site. Reliance was placed on paragraph 20 of Annex B of Planning Policy Guidance 12 ("PPG12") where it is stated that, where a local authority choose not to accept an Inspector's recommendation, it must provide "clear and cogent reasons" for doing so.

I have already quoted the reasons given for deleting the Bonehill site as contained in the report of 23rd January 2006 and as summarised in Appendix 1 to that report. The first reason contained in Appendix 1 was that the site was not needed based on current take-up rates and the current revision of the Regional Spatial Strategy. The point relating to take-up rates is inherent in the aspect I have already dealt with when considering the Council's reliance on paragraphs 5.1.3 and 5.1.6 of the Inspector's Report. The reason given relating to the current revision of the RSS is criticised by the claimant on the basis that there is no published revision of the RSS or any study relating to it. It is said to be unlawful to seek to rely on a policy that does not exist. The Council, on the other hand, contend that the reliance on the revision of the RSS is simply to show that the door is not closed and that, if there were to be a need, it can be considered in the forthcoming RSS.

Although I have some sympathy with the point made by the claimant, when Appendix 1 is read together with the report of 23rd January 2006, it is tolerably clear that the point is tied up with the conclusion that there is no need for the Bonehill site. The point that is being made is that, if there were subsequently to be shown to be a need for the site, it could be dealt with in the revision of the RSS. On that understanding, I do not consider that it gives rise to any adverse finding beyond that which I have already dealt with under the claimant's first ground of challenge.

The second reason given in Appendix 1 for deleting the Bonehill site is that it is a greenfield site dependent on the provision of significant infrastructure and is not considered likely to come forward for development before 2011. As the claimant rightly says, the site has been a greenfield site with the same policy considerations all the time that the Council was promoting it in the Local Plan. The more important point, however, is the infrastructure and related timing point.

The claimant submits that there is no evidence that the site is dependent on the provision of significant infrastructure. Indeed, the evidence by way of a witness statement from Mr Timothy, a planning expert, made on behalf of the claimant, is that there is no technical or other impediment to the development of the site which would preclude it from being brought forward for development before 2011. I was told that the claimant had expressly requested the Council to provide evidence to support the infrastructure assertion but, despite that request, no evidence had been provided. It was not dealt with in the witness statement of Mr Vanstone, the Council's Strategic Planning Manager, or in any other document. That was accepted to be the position by the Council, although I was told that the Council did not accept that there was not any infrastructure problem.

I find it significant that the Council has failed to provide any evidence to substantiate the alleged infrastructure and associated timing reason for deleting the site despite being expressly requested to provide it by the claimant. It would be surprising if it could be substantiated because the site was positively promoted by the Council at the public inquiry. The only evidence I have is that there is no such infrastructure problem. In those circumstances I conclude that the second reason for deleting the site, namely the infrastructure and associated timing point, is unsubstantiated and was therefore wrongly relied on by the Council as a reason for deleting the site.

The third ground of challenge on this aspect of the case is that the deletion of the site was not in conformity with the Structure Plan. By virtue of section 36(4) of the Town and Country Planning Act 1990 and the transitional provisions in Schedule 8 of the Planning and Compulsory Purchase Act 2004, the Local Plan must be in general conformity with the Structure Plan. The claimant's case is that the deletion of about half of the Structure Plan requirement from the employment land provision in the Local Plan results in a significant under-provision compared to the Structure Plan requirement and results in the Local Plan not being in general conformity with the Structure Plan. The Council submits that, on a pragmatic basis, there was conformity. It relies on the fact that there was no objection from the County Council, the strategic planning authority, or from the Regional Planning Body.

I recognise the force of the lack of objection on non-conformity grounds from those bodies, but there is no formal response from either of those bodies positively stating that the Local Plan employment provision is in conformity with the Structure Plan. Indeed, I find it difficult to see how there could be such a response in the light of the express terms of policy EMP1 of the Local Plan which states that the employment land provision constitutes a significant shortfall below the Structure Plan target. I fail to see how such a significant shortfall can be said to be in general conformity with the Structure Plan. Policy EMP1 simply states that the provision is considered to be acceptable. The justification for the policy states that the provision (which amounts to about half of the Structure Plan requirement) will be adequate for the plan period. In my view, that is tantamount to recognising that it is not in general conformity with the Structure Plan but maintaining that it is nevertheless acceptable. On the evidence before me, I therefore conclude that there is substance in the claimant's third ground of challenge that the deletion of the Bonehill site, together with the deletion of the Anker Valley site, can be said to result in the employment land provision not being in general conformity with the Structure Plan.

The claimant's fourth ground of challenge to the decision to modify the Local Plan by deleting the Bonehill site relates to the reliance on the Regional Spatial Strategy, but I dealt with that when dealing with the reasons given for the deletion of the site.

The final and separate ground of challenge by the claimant relates to the Council's decision not to hold a further public inquiry.

The law on this aspect was helpfully summarised by Mr Robin Purchas QC sitting as a Deputy High Court Judge in the case of Drextine Holdings Ltd v Cherwell District Council [1998] JPL 361, when he stated at pages 372 to 373 as follows:

I should also mention that in Stirk v Bridgenorth District Council [1997] 73 P&CR 439 the Court of Appeal held that, in circumstances such as these, where the Council is both proposer and judge, the obligation to deal thoroughly, conscientiously and fairly with any objection is enhanced.

The main thrust of the claimant's challenge to the Council's refusal to hold a further inquiry is that the Council pre-determined the issue and approached it with a closed mind in the context of a known deadline and that the Council failed to consider the issue of fairness. The claimant points to the references in the report of 23rd January 2006 which I quoted earlier where it was stated that, should there be objections to the proposed modifications, they would not justify a further inquiry, that being said before it was known what the objections were. It was submitted that that was eloquent of a closed mind and was an unlawful approach to the issue. Further, it was contended that the deletion of the Bonehill site on the ground of lack of need was not an issue at the inquiry and that it would have given rise to different considerations including a comparison of sites for exclusion.

The Council, on the other hand, point out that there was no duty to hold a further public inquiry. The references in the report of 23rd January 2006 to no need for an inquiry before the objections were known was said to be simply an officer's assessment at the time, and reliance was placed on paragraph 14.4 of the report of 10th April 2006, which I quoted earlier, as showing that there was not a closed mind on the issue of a further inquiry. It was submitted that the issue of take-up rates and the need for employment land had been considered at the inquiry and that a further inquiry would delay the Local Plan so that it would have to be abandoned. Finally, it was contended that a further inquiry would not produce information of such materiality as to outweigh the adverse impact on other parties, including the Council.

The starting point on this issue must be that the deletion of the Bonehill site did not result from an objection to it raised at the public inquiry. On the contrary, the objections to it raised in the inquiry were opposed by the Council and that opposition was upheld by the Inspector. The possibility of deleting the Bonehill site (and the Anker Valley site) on the ground of lack of need was not an issue at the inquiry. On the contrary, its attractions were singled out by the Inspector, and the Council were contending that it was a key site. There is no doubt that its deletion as part of an exercise to reduce the employment land provision to half of the Structure Plan requirement was a radical change which would give rise to fresh issues about which the claimant would understandably wish to adduce new evidence. There is no doubt in my mind that the refusal to hold a further inquiry caused unfairness to the claimant. On the other hand, I acknowledge that the delay that would be caused by a further inquiry could have led to the abandonment of the Plan. That is a weighty consideration to be put into the balance.

I find it highly surprising that the report of 23rd January 2006 stated that any objections to the proposed modifications would not justify a further inquiry before it was known what the objections were. I can entirely understand the suggestion by the claimant that it showed that the Council was approaching the matter with a closed mind, most probably influenced by the necessity to adopt the Plan by 21st July 2006.

The reasons given in paragraph 14.4 of the report of 10th April 2006 for not holding a further inquiry do not refer to the effect of delay on the Local Plan. Instead, they refer in particular to the objections to the greenfield sites having been considered at the Local Plan inquiry and to the inspector having clearly indicated that there is adequate employment land without the greenfield allocations. In fact, the objections to the greenfield sites considered at the Local Plan inquiry did not include their deletion on the ground of lack of need, nor did the Inspector consider whether they should be deleted on the ground of adequacy of employment land.

I am not persuaded that the reasons given for not holding a further inquiry are adequate in themselves or adequate to remove the feeling that the Council had already made up its mind not have a further inquiry, possibly influenced by the pressure of the deadline of 21st July 2006. In particular, there was no consideration of the unfairness to the claimant to be set against any unfairness arising from the possible consequences to the Plan from the delay caused by further inquiry. In summary, there was not a balanced, adequately reasoned or fair approach to the decision not to hold a further inquiry. If there had been such an approach, it is possible, although not certain, that the decision would have been the same but that is not the point. There was not such an approach in the decision making process and I would therefore uphold this ground of challenge as well.

Having found against the Council for the various reasons that I have given, it remains for me to consider whether, despite those findings, I should exercise my discretion not to quash the relevant provision of the Plan, namely policies EMP1 and EMP2 and the elements of the Proposals Map relating to policy EMP2.

It was submitted on behalf of the claimant that I should exercise my discretion not to quash those provisions of the Plan because otherwise it would leave the Local Plan without those provisions for a potentially substantial period of time which could lead to the undesirable situation of ad hoc planning applications being made in the absence of those policies. I was told that it might be about three years before policies relating to employment site allocations were adopted in the Local Development Framework process.

I am not persuaded by that argument. I have held against the Council on a number of different grounds. In my view, the disadvantages of quashing the relevant polices are not so great as to outweigh the matters on which I have found against the Council. I therefore decline to exercise my discretion not to quash those policies.

My overall conclusion therefore is that this application succeeds and that policies EMP1 and EMP2, together with the elements of the proposals relating to policy EMP2, should be quashed.