Royal Courts of Justice
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
THE QUEEN ON THE APPLICATION OF
(1) DR NIGEL ROBERTS
(2) PERSIMMON HOMES (WEST MIDLANDS) LIMITED
(3) THE CURBOROUGH CONSORTIUM
Claimants
-v-
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
Defendant
and
(1) WEST MIDLANDS REGIONAL ASSEMBLY
(2) STAFFORDSHIRE COUNTY COUNCIL
(3) SOUTH STAFFORDSHIRE COUNTY COUNCIL
(4) THE PLANNING INSPECTORATE
(5) LICHFIELD DISTRICT COUNCIL
Interested Parties
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Mr Ian Dove QC and Miss Jenny Wigley [Ms Bridget Forster appeared for the purposes of judgment only] (instructed by Messrs Hammonds, Birmingham B3 2JR) appeared on behalf of the Claimants
Mr John Litton (instructed by Treasury Solicitor) appeared on behalf of the Defendant
J U D G M E N T
MR JUSTICE SULLIVAN:
Introduction
In this application for judicial review the claimants seek a quashing order in respect of the defendant's decision dated 7th September 2007 not to make a direction under paragraph 1(3) of Schedule 8 to the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") that the transitional period set out in sub-paragraph (2)(a) of that paragraph should not apply to policies H1, IM1 and IM2 of the Staffordshire and Stoke-on-Trent Structure Plan.
Statutory Framework
The development plan is of central importance in the planning system in England and Wales. When local planning authorities determine planning applications they are required, by section 70(2) of the Town and Country Planning Act 1990 ("the 1990 Act"), to "have regard to the provisions of the development plan, so far as material to the application ..." Section 38(6) of the 2004 Act provides that:
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts [which include the 1990 Act] the determination must be made in accordance with the plan unless material considerations indicate otherwise."
The 2004 Act introduced a wholly new system of development plans. For any area in England outside Greater London the development plan is now (a) the regional spatial strategy (RSS) for the region in which the area is situated, and (b) the development plan documents (DPDs), which include the local development frameworks (LDFs), which have been adopted or approved in relation to that area: see section 38(2).
The RSS and the DPDs replaced the previous hierarchy of plans under which the development plan for areas outside Greater London comprised the structure plan and local plans (or the unitary development plan) for the area, which plans had to take account of relevant regional planning guidance which was contained in RPGs, although those RPGs were not part of the statutory development plan: see section 54 of the 1990 Act.
Bringing the new system into effect was an enormous task which could not be achieved overnight. Some "old policies" had to be retained until "new policies" could take their place. Schedule 8 contains transitional provisions:
"1(1) During the transitional period a reference in an enactment mentioned in section 38(7) above to the development plan for an area in England is a reference to -
the RSS for the region in which the area is situated ... and
the development plan for the area for the purposes of section ... 54 of the principal Act.
The transitional period is the period starting with the commencement of section 38 and ending on whichever is the earlier of -
the end of the period of three years;
the day when in relation to an old policy, a new policy which expressly replaces it is published, adopted or approved.
But the Secretary of State may direct that for the purposes of such policies as are specified in the direction sub-paragraph (2)(a) does not apply.
An old policy is a policy which (immediately before the commencement of section 38) forms part of a development plan for the purposes of section ... 54 of the principal Act.
A new policy is a policy which is contained in -
a revision of an RSS;
...
a development plan document.
But—
an old policy contained in a structure plan is replaced only by a new policy contained in a revision to an RSS;
...
A new policy is published if it is contained in -
a revision of an RSS published by the Secretary of State under section 9(6);
...
A new policy is adopted or approved if it is contained in a development plan document which is adopted or approved for the purposes of Part 2.
...
..."
Section 38 was brought into force as from 28th September 2004, so the 3-year period in sub-paragraph (2)(a) expired on 27th September 2007.
Sections 7-9 of the 2004 Act prescribe the procedure to be followed by the defendant before she publishes a revision of an RSS under section 9(6). In brief, on receipt of a draft revision of an RSS the Secretary of State may arrange for an EIP. If an EIP is held the Secretary of State must consider the report of the person appointed to hold the EIP. If, having considered that report, she proposes changes to the draft she must publish those changes and her reasons for making them. Having considered any further representations the Secretary of State may then publish the revision to the RSS incorporating such changes as she thinks fit, together with her reasons for making those changes.
Factual Background
The Staffordshire and Stoke-on-Trent Structure Plan ("the Structure Plan") was adopted in 2001 and covered the period between 1996 and 2011. Policy H1 in the Structure Plan dealt with "Housing Provision". It stated that:
"Sufficient land should be allocated to enable 51,800 dwellings to be completed 1996-2011, to be located as follows: ..."
The 51,800 dwellings were then distributed between the district councils. Of particular relevance for present purposes, South Staffordshire was allocated 5,100 dwellings:
"- to include a maximum allocation of 1,000 dwellings between Great Wyrley/Cheslyn Hay/Essington* ... and/or further possible developments around the new railway station at Brinsford, including land at the former Featherstone Ordnance Depot, subject to a commitment to the provision of this station having first been secured. These schemes will require the release of Green Belt land."
Lichfield was allocated 7,800 dwellings:
"- to include new allocations: ...
for some 1,400 dwellings north-east of Lichfield centred around the former Fradley Airfield, with capacity allowed for at least a further 1,600 dwellings beyond the Plan period, subject to meeting the requirements of Policies IM1 and IM2; ..."
Paragraphs 7.20 and 7.21 of the Structure Plan Explanatory Memorandum said:
Policy H1 distributes the total provision of 51,800 to each local authority area in accordance with the general geographical prescription in RPG11, while having regard to local pressures and constraints. A high proportion of the additional provision to be found arises within the Central Crescent, to meet both local housing needs and the needs of migrants from the West Midlands Conurbation.
Within the Crescent area, major housing development is proposed mainly in or close to the
main urban areas on the outer edge and beyond the Green Belt. ..."
Policies IM1 and IM2 were concerned with the implementation of policy H1. For the purposes of paragraph 1(3) of Schedule 8 to the 2004 Act they stand or fall with policy H1.
RPG11, referred to in paragraph 7.20 of the Structure Plan Explanatory Memorandum, was the first regional guidance for the West Midlands published in 1998. In June 2004 the Office of the Deputy Prime Minister published a revised version of RPG11, which became the RSS for the West Midlands in 2005. Chapter 3 explained that the RSS marked "A Fundamental Change of Direction" in the strategy for the region:
The RPG process has provided the opportunity to fundamentally reassess the nature of the West Midlands and the different circumstances, threats and opportunities that each place within it faces. In doing so the continued decentralisation of population and investment from the Major Urban Areas (MUAs) and the need to create balanced and stable communities across the Region have been identified as key issues. ...
An important factor in the trend of decentralisation from the MUAs has been the availability of development land in the settlements close to them. This has contributed to the loss of investment, abandonment and environmental degradation in the MUAs and increased development and environmental pressures in other parts of the Region. The dispersal of population and activities under-uses the social and physical resources of the MUAs and contributes to unsustainable development patterns that lead people to make more and longer journeys, more often than not by the private car.
...
In this context four major challenges are identified for the Region:
Urban Renaissance – developing the MUAs in such a way that they can increasingly meet their own economic and social needs in order to counter the unsustainable outward movement of people and jobs facilitated by previous strategies;"
Paragraph 6.1 of the revised RPG explained:
"The Spatial Strategy in this RPG requires a significant redistribution of housing provision. This will involve moving from the recent position of two houses built outside the Major Urban Areas (MUAs) for each one within them, to less than one outside for each one within. To support this, residential environments within the MUAs will need to be made more attractive, so that they can increasingly retain their populations. At the same time new housing provision in the other areas will need to be reduced to levels where it is largely meeting local needs, hence discouraging decentralisation. This marks a shift from the previous RPG which provided housing in the Central Crescent towns, including Worcester, Telford, Warwick/Leamington and Lichfield, to meet the needs of those working in the metropolitan area."
The revised RPG was sent to the Chair of the West Midlands Regional Assembly ("WMRA") under cover of a letter dated 15th June 2004 from the Minister of State for Housing and Planning, the Rt Hon Keith Hill MP. The "Hill letter", as it came to be called, is of central importance in the claimants' application for judicial review. So far as relevant, it said:
"I am writing to inform you that the First Secretary of State has today issued Regional Planning Guidance for the West Midlands (RPG11), a copy is enclosed for your information.
...
Publication of RPG11 is a major step forward for the Region, confirming a significant change in direction. The focus on urban renaissance will require all stakeholders to work effectively towards common goals and the Regional Assembly has a key role in leading this.
Whilst the Spatial Strategy for the Region is now defined, there is a need to develop the RPG in subsequent reviews. ...
When the Planning and Compulsory Purchase Bill is enacted the RPG will become the Regional Spatial Strategy, although some Structure Plan policies will need to be saved until further work is completed. Specific issues which have been identified in the consultation responses include:
• the distribution of housing allocations to functional sub-regions; ...
The development of the issues for further work will need to be balanced against the available resources and Regional priorities. You should discuss this with GOWM in order to prepare a programme of priority work leading to the next review of RPG11.
RPG11 provides the framework to inform both the development and implementation of strategies and programmes in the Region, including the Regional Economic Strategy, the Regional Housing Strategy and the plans of infrastructure and service providers. Local authorities must take RPG11 into account in preparing their development plans and local transport plans.
The absence of housing allocations may cause some difficulties for local authorities in the short term. Pending completion of the above work, districts should work on the basis of the current Structure Plan proportions to 2011. Beyond that, the proportions may not be appropriate. However, in the absence of any better information authorities should retain the Structure Plan proportions and PPG3 'plan, monitor and manage process' should address any issues which arise. It is important that this approach should not lead to significant, particularly greenfield, allocations which could be inconsistent with the principles of RPG11. If there are any doubts, authorities should discuss this with GOWM. ..."
Further work on the distribution of housing allocations to functional sub-regions was required because, unlike policy H1 which distributed the total number of dwellings to be provided county-wide between the constituent district councils, the policies in the revised RPG11 contained no such distribution of the county-wide figure.
Policy CF1 directed housing provision to the Major Urban Areas ("MUAs").
Paragraph 6.11 and policy CF3 said:
The distribution of housing in Table 1 sets out how the MUAs will increasingly meet their own generated needs while provision in the shires and unitary areas is correspondingly reduced. This shows a transition from the former ratio of new housing development between the MUAs and other areas of 1:2, through a position at 2007 where this is near 1:1, to 2011 where the ratio is in favour of the MUAs.
...
POLICY CF3: Levels and distribution of housing development
Development plans should make provision for additional dwellings to be built at the annual rates specified in Table 1 below. These rates are to be applied as minima for the MUAs and maxima elsewhere."
Table 1 set out an Annual Average Rate of Housing Provision for the planning areas covered by RPG11, including Staffordshire and Stoke-on-Trent under three columns: to 2007, 2007-2011, and 2011-2021. In the case of Staffordshire the numbers of new dwellings per annum in these three periods were: 2,900, 2,500 and 1,600.
As might have been predicted by those with experience of previous changes to the development plan system, the changeover from structure plans and local plans to RSSs and DPDs has taken much longer than was originally anticipated.
In August 2006 the Department for Communities and Local Government published a "Protocol for handling proposals to save adopted Local Plan, Unitary Development Plan and Structure Plan policies beyond the 3 year saved period". The Protocol said:
"It is expected that LPAs and RPBs [Regional Planning Boards] will be asking the Secretary of State to save a number of old policies beyond the three year period. This protocol sets out how to make these requests and how the government will respond to them. ...
Procedure for saving Structure Plan policies
Following discussions with the structure plan authority, the RPB may make a request to the Secretary of State to extend the life of structure plan policies. These requests should be received by the Government Office by 1 April 2007. Such requests will be considered in the light of the following criteria set out in PPS11 paragraph 2.57:
the saved policies are consistent with national planning policies appearing in White Papers and Planning Policy Statements that have been published since the policies were adopted and are in general conformity with the regional spatial strategy;
the saved policies address an existing strategic policy deficit and do not duplicate national or local policy;
the operation of policies to be saved for longer than three years is not materially changed by virtue of other policies in the old plan not being saved; and
even where policies are non-compliant with one or more of the above, the Secretary of State considers that it is appropriate for the policies to be saved for longer than three years. This would be on the basis that the regional planning body must provide reasons why these policies should be retained.
NB. If by 1 April 2007 the RPB has not submitted a statement requesting the extension of a saved structure plan policy, and the Secretary of State considers that the policy is compliant with the criteria in PPS11 and the extension of that policy is necessary in order to secure the delivery of national planning policy, she may direct that the policy is extended."
PPS11 deals with Regional Planning and was published in September 2004. In respect of Structure Plan policies the Protocol effectively repeats the advice contained in paragraph 2.57 of PPS11.
In a witness statement filed on behalf of the defendant Mr Marr, the Head of Planning and Housing at the Government Office for the West Midlands ("GOWM") explains the background:
"When the transitional arrangements were agreed it was assumed that the majority of DPDs and RSSs would have been put in place during the three years following the commencement of the [2004] Act. Unfortunately, as this has not happened at the anticipated rate, local authorities have requested a larger number of policies to be saved than was anticipated."
Whatever Mr Hill's expectations might have been in June 2004 as to the progress of the work to be undertaken in respect of the distribution of the county-wide housing allocations in policy CF3 and Table 1 in the revised RPG11, the Phase Two Revision of the RSS (as the revised RPG11 had become), dealing with "Spatial Options" was not published by the WMRA for consultation until 8th January 2007 ("the Options document"). Having explained the objective of the revision, "To re-examine regional and sub-regional housing needs and requirements and how these can be best met in the Region up to 2026", the Options document put forward three options:
"These Options are reference points against which comments can be made. The Preferred Option may not be one of the three, instead your comments will be used along with a robust evidence base to decide on the best level of household growth for the Region. This approach has been taken following the publication of the Government household projection figures in April 2006 and subsequent Government advice."
The three options were then described:
"Option One
(381,000 new dwellings gross, 293,400 dwellings net)
This Option has been based, at the Strategic Authority level, on a continuation of current WMRSS proposals to 2026. ...
Option Two
(491,200 new dwellings gross, 376,700 dwellings net)
This Option is derived from the responses of the Strategic Authorities to the Section 4(4) Brief — both the initial advice and from subsequent discussions between the WMRA and each Section 4(4) Authority. As such, the distribution is based on local knowledge of opportunities and constraints, as well as seeking to meet an appropriate distribution of housing proposals across the Region. ...
Option Three
(575,000 new dwellings gross, 460,500 dwellings net)
This is 83,800 dwellings higher than Option Two. It is the level required to meet the high levels of demand set out in the Government's 2003-based household projections. This Option builds on the distribution shown in Option Two. ..."
Table 1 set out the potential distribution of new dwellings between 2001 and 2026 (gross figures) under the three options. For Staffordshire the figures were 51,300, 67,900 and 77,900, respectively. The Staffordshire figures were broken down by district. The figure for South Staffordshire was 5,000 new dwellings in all three options. For Lichfield the figures were 6,600, 11,000 and 16,000 for Options 1, 2 and 3, respectively.
Table 2 expressed these figures as annual build rates (gross) 2001-2026. For South Staffordshire the annual build rate was 200 new dwellings under all three options. For Lichfield the annual build rate was 260, 440 or 640 depending on whether Option 1, 2 or 3 was adopted.
On the following day, 9th January 2007, Mr Smith, the Planning Team Leader (Northern Division) of GOWM, wrote to all West Midland local planning authorities and the WMRA giving "Advice on Housing Allocations":
"We have been receiving some requests for further advice on the levels of housing allocation expected in emerging core strategies. The need for this is reinforced by paragraph 7 of PPS3 which requires authorities to assess whether they have a five year supply of deliverable land for housing.
As you know, the Secretary of State's letter dated 15 June 2004 which accompanied the publication of the existing RSS said that '...in the absence of any better information authorities should retain the Structure Plan proportions...' The Regional Assembly has considered, as part of the development of options for the Phase 2 RSS revision, the distribution of current County level housing allocations to districts. The Government Office considers that this represents better information than Structure Plan proportions for the purposes of preparing LDFs and therefore propose that it should be used pending the outcome of the Phase II Review.
A related issue which is causing some concern is the need for core strategies to demonstrate flexibility in relation to emerging RSS. Given the current position of the Phase 2 RSS revision, and the conclusion above about the early work providing 'better information', we would expect core strategies to demonstrate that the Option 1 levels are deliverable. In accordance with paragraph 53 of PPS3, they should also provide an indication of how, in broad terms, the core strategy would accommodate the levels of housing envisaged in Options 2 and 3."
On 10th January 2007 Mr Strachan, Divisional Director of RPS Planning, who was representing the interests of one of the claimants, wrote to the WMRA:
"... to raise the issue of the Staffordshire Structure Plan and the provisions under the Planning and Compulsory Purchase Act 2004 which allow the Structure Plan to be 'saved' until 28 September 2007."
Having referred to the Protocol and to the criteria in paragraph 5.11 of PPS12, which echo those in paragraph 2.57 of PPS11 (see above), the letter concluded:
"The Curborough Consortium therefore formally make a request to the RPB that Policies [H1], IM1 and IM2 of the adopted Staffordshire and Stoke on Trent Structure Plan 1996-2011 should continue to be saved beyond 28 September 2007 at least until such time as these may become superseded by the Regional Spatial Strategy Review when this process is completed."
The WMRA suggested that RPS should make their representations directly to GOWM, so on 14th February 2007 Mr Strachan wrote to Mr Smith, enclosing his letter to the WMRA and amplifying it, as follows:
"The Consortium met David Thew and Tim Williams of WMRA and Tony Lovett of Staffordshire County Council just over a week ago at which time you kindly e-mailed to us your letter of advice on housing allocations to Local Authorities, dated 9 January 2007. Having considered this advice in the context of the saving of Structure Plan policies, we wish to raise further concerns over what could become a highly unsatisfactory situation.
We would commend to you all of the points made in our letter to WMRA but, in addition, and in the light of your advice to Local Authorities, we would draw particular attention to the undoubted policy vacuum which will result from a failure to save relevant Structure Plan Policies. We are of course interested specifically in those policies contained in the Staffordshire Structure Plan but we anticipate that others may very well be making the same points on other relevant Structure Plans relating to the West Midlands.
In relation to Staffordshire, it is Policy H1 which sets the appropriate level of housing growth in the County until 2011. If Policy H1 does not continue to exist, there will be considerable difficulty for Local Authorities in calculating the relevant five year land supply for development control purposes, where future planning applications and appeals may need to be considered. Housing land availability issues will of course assume extra significance in determining planning applications in the light of the recently published PPS3. We note in your advice to the Authorities that you appear to be suggesting that the Secretary of State's letter dated 15 June 2004, which refers to Structure Plan proportions should be superseded by what effectively amounts to a dependence on the Option 1 scenario, contained in the recently published RSS Spatial Options document and totally untested.
Since as you are well aware, it is Option 3 which represents the level of housing growth which accords most closely with the most recently published household growth forecasts, it is rather surprising that you advise that Core Strategy DPS's should be based on what effectively amounts to a wholly unsupportable Option 1 scenario rather than on more appropriate and higher levels. It is interesting that the Lichfield Inspector, on the basis of his knowledge at the time, had a clear view that housing requirements in the region would significantly increase. What appears to be suggested now in your advice would result in Core Strategies based on a significantly lower level of growth than what is required, even though you have asked for flexibility to be demonstrated. When seen against the emphasis on housing delivery as reflected in PPS3 and the Barker Report, this seems to be an approach which is unlikely to stand up to rigorous challenge.
In addition to providing a development plan base for calculating housing requirements to 2011, the Structure Plans also provide broad locational guidance. The RSS Spatial Options document provides virtually none and this will be the subject of considerable debate at any future RSS Examination. The best that can be said at present is that it does not go far enough to be relied upon and, at the very least requires Structure Plans to be read alongside the RSS when considering the distribution of development.
To emphasise this point, you will be well aware that the current RPG11 has no sub-regional guidance since it was never initially conceived as a regional spatial strategy. It therefore relies on the Structure Plans to provide such sub-regional direction as exists. Until the new RSS has been adopted, the Structure Plans should continue to play that role in the absence of any better guidance. This is particularly important in the Fradley context.
We therefore believe that the retention of the relevant Structure Plan policies, as we have indicated in our letter to WMRA, is essential, particularly in the Staffordshire context, to ensure that there is a correct basis, both in terms of scale and distribution, for effective development control in the next few years. We say this because the RSS programme does not envisage an adopted Regional Spatial Strategy until 2009 at the earliest. While this will be welcome, it will not provide District Councils with a full development plan context until such time as their Core Strategies and Site Allocation documents are eventually prepared. There will therefore be a time vacuum of at least three to four years and it is during this period that we believe that a continuation of relevant Structure Plan policies will be most appropriate.
There should be no particular down side arising from the retention of Structure Plan policies. If there is some concern that there may be tension between what exists in the Structure Plan and in the current Regional Strategy, then we do not understand why this should be the case, especially in the light of what we have said about the likelihood of higher housing growth figures being the eventual basis on which the RSS process is concluded ...
In the light of the above therefore we would repeat the formal request which was made initially to WMRA and now made to GOWM, that policies H1, IM1 and IM2 of the adopted Staffordshire and Stoke-on-Trent Structure Plan 1996 - 2011 should continue to be saved beyond 28 September 2007. We would suggest if there needs to be a timeframe set during which the policies continue to be saved then this should be for at least three years beyond the relevant date."
On 12th March 2007 Mr Johnson, the Director (Planning and Strategic Services) of South Staffordshire District Council wrote to the County Council asking for confirmation that:
"... the County Council will not be seeking to retain Policy H1 when it makes its submission to GOWM in respect of saved policies."
The explanation for his request to the County Council is similar to that contained in a letter of the same date that he sent to Mr Smith at GOWM. Headed "Re: PPS3 — 5 year supply of deliverable housing sites" that letter said:
"I am writing with regard to the current planning circumstances of South Staffordshire and particularly We have been receiving some requests for further advice on the levels of housing allocation expected with regard to the requirement in Para 54 of PPG3 that:-
'Local Planning Authorities should identify sufficient specific deliverable sites to deliver housing in the first five years...'
Para 55 then goes on to say that Local Planning Authorities should:-
'Identify a further supply of specific, developable sites for years 6-10 and where possible for years 11-15. Where it is not possible to identify specific sites for years 11-15, broad locations for future growth should be indicated...'
As you know, South Staffordshire District Council is currently facing three Public Inquiries for a significant scale of residential development in the Summer/Autumn of 2007. The total number of dwellings is about 2,000.
All three sites are situated on the periphery of the Major Urban Area (MUA) of the Conurbation and within the general location of Great Wyrley/Cheslyn Hay and/or Brinsford/Featherstone. Two of the three sites, Campions Wood Quarry and the Brinsford MDA site, were referred to by the Inspector at the Landywood Inquiry last May 2006 when he concluded (Para 16.38 of his letter of recommendation) that:-
'All 3 sites are close to the conurbation and the development of any one of them has the potential of diverting investment and people from the MUA, contrary to the thrust of RSS'.
The third of the Inquiry sites, land south of Featherstone (Brookhouse Lane), is adjacent to the Brinsford MDA site.
The Council is currently in the process of establishing its housing supply having regard to PPS3 and in particular the 5-year supply of specific deliverable sites and the rolling supply in years 6-10 and 11-15. The Council is taking the view that the starting point for these calculations is the housing figures set out in the RSS Phase Two Revision — The Spatial Options — consultation document, which for South Staffordshire District Council is an annual rate of 200/year and a total figure of 5000 for the period 2001-2026 under all 3 of the Spatial Options. The Council refers to your earlier letter of 9 January 2007 that stated:-
'The Regional Assembly has considered, as part of the development of options for the Phase 2 RSS Revision, the distribution of current County level housing allocations to districts. The Government Office considers that this represents better information than Structure Plan proportions for the purposes of preparing LDPs and therefore propose that it should be used pending the outcome of the Phase II Review'.
The Council would appreciate your confirmation that the starting point for calculating the supply of specific deliverable housing sites in the next 5 years, and beyond to years 6-10 and 11-15, is the housing figures set out in the RSS Phase Two Revision — The Spatial Options — consultation."
The background to this request was the policy advice contained in PPS3 Housing, published by the Department for Communities and Local Government in November 2006. Under the subheading "Delivering a flexible supply of land for housing", paragraphs 52-55 advised local planning authorities:
The Government's objective is to ensure that the planning system delivers a flexible, responsive supply of land. Reflecting the principles of 'Plan, Monitor, Manage', Local Planning Authorities and Regional Planning Bodies should develop policies and implementation strategies to ensure that sufficient, suitable land is available to achieve their housing and previously-developed land delivery objectives.
At the local level, Local Planning Authorities should set out in Local Development Documents their policies and strategies for delivering the level of housing provision, including identifying broad locations and specific sites that will enable continuous delivery of housing for at least 15 years from the date of adoption, taking account of the level of housing provision set out in the Regional Spatial Strategy. In circumstances where Regional Spatial Strategies are in development, or subject to review, Local Planning Authorities should also have regard to the level of housing provision as proposed in the relevant emerging Regional Spatial Strategy.
Drawing on information from the Strategic Housing Land Availability Assessment and or other relevant evidence, Local Planning Authorities should identify sufficient specific deliverable sites to deliver housing in the first five years. To be considered deliverable, sites should, at the point of adoption of the relevant Local Development Document:
– Be Available – the site is available now.
– Be Suitable – the site offers a suitable location for development now and would contribute to the creation of sustainable, mixed communities.
– Be Achievable – there is a reasonable prospect that housing will be delivered on the site within five years.
Local Planning Authorities should also:
– Identify a further supply of specific, developable sites for years 6-10 and, where possible, for years 11-15. Where it is not possible to identify specific sites for years 11-15, broad locations for future growth should be indicated."
PPS3 advised local planning authorities that when determining local planning applications:
Local Planning Authorities should take into consideration the policies set out in Regional Spatial Strategies and Development Plan Documents, as the Development Plan, as well as other material considerations. When making planning decisions for housing developments after 1st April 2007, Local Planning Authorities should have regard to the policies in this statement as material considerations which may supersede the policies in existing Development Plans.
In general, in deciding planning applications, Local Planning Authorities should have
regard to:
...
– Ensuring the proposed development is in line with planning for housing objectives reflecting the need and demand for housing in, and the spatial vision for, the area and does not undermine wider policy objectives eg addressing housing market renewal issues.
Where Local Planning Authorities have an up-to-date five year supply of deliverable sites and applications come forward for sites that are allocated in the overall land supply, but which are not yet in the up-to-date five year supply, Local Planning Authorities will need to consider whether granting permission would undermine achievement of their policy objectives.
Where Local Planning Authorities cannot demonstrate an up-to-date five year supply of deliverable sites, for example, where Local Development Documents have not been reviewed to take into account policies in this PPS or there is less than five years supply of deliverable sites, they should consider favourably planning applications for housing, having regard to the policies in this PPS including the considerations in paragraph 69.
On 23rd March 2007 Mr Smith replied to Mr Johnson:
"PPS3 — 5 Year Supply of deliverable housing sites
I refer to your letter dated 12th March concerning the requirement in PPS3 to demonstrate a supply of deliverable housing sites for the next 5 years.
I can confirm that the starting point for calculating the supply of specific deliverable housing sites in the next 5 years and for the years beyond would be based on the figures set out in Option 1 of the Phase 2 RSS revision, with a view to how you would accommodate Options 2 and 3. In your case, since all 3 options are proposing the same level of housing for South Staffordshire this would clearly not be an issue at present.
I trust this clarifies the position."
In a letter dated 30th March to GOWM, the WMRA formally requested the Secretary of State that she should use her power of direction under sub-paragraph 1(3) of Schedule 8 to the 2004 Act to extend the 3-year period for certain saved Structure Plan policies within the West Midlands Region. The letter explained that the Structure Plan authorities had been asked to assess all of their Structure Plan policies against the Department's criteria and to provide the justification for extending the life of a policy against the criteria in paragraph 5.11 of PPS12. The letter said, inter alia:
"The attached letters and tables for the 6 Structure Plan Authorities therefore constitute the formal submission of the Regional Assembly to the Secretary of State to extend the life of certain Structure Plan Policies.
The Regional Assembly sought to establish consistency between Structure Plan Polices relating to Housing and Employment provision. There is consensus that it would be appropriate to save Employment Provision Policies beyond 2007 to avoid a Policy deficit in the short term pending the outcome of the RSS Phase 2 Revision process. However, with respect to their Housing Provision policies, both Worcestershire and Warwickshire County Council's have restated their opinion that, for their own reasons, their Policies on this matter should be saved for an extended period. Appropriate changes have been made to the relevant tables to reflect this situation."
In respect of policy H1, the table submitted by the WMRA gave the following reasons why policy H1 should not be saved:
"Policy CF3 and accompanying Table 1 of RSS set out levels of distribution of housing for the period to 2021. In the absence of district figures, on publication of RPG11 the Minister of State for Housing and Planning stated in his letter to the WMRA that pending completion of work on housing allocations 'districts should work on basis of current Structure Plan proportions to 2011'.
The distribution of housing provision set out in this policy and the locational specificity it contains was a reflection of the previous RPG and as such is no longer considered appropriate in the context of the new RPG/RSS and the sea change in underlying strategy that it contains. While the numbers in Policy H1 provide the proportions referred to in Keith Hill's letter that accompanied the RPG/RSS in June 2004, their application to RPG/RSS county figures is considered inappropriate and misleading for the above reasons and therefore the policy should not be saved.
The policy guidance to the location of strategic allocations has been wholly overtaken by the policies and strategy of the RSS and in particular the distinctions made between Major Urban Areas, Other Large Settlements, Market Towns and rural areas."
In respect of policies IM1 and IM2 the table said:
"The policy guidance to the allocation of strategic allocations has been wholly overtaken by the policies and strategy of the RSS. In this context the [Structure Plan] policy appears to be no longer relevant."
On 29th March 2007 there had been a meeting between GOWM and Mr Strachan and the representatives of the third claimant.
On 18th April 2007 Mr Strachan wrote to Mr Smith:
"I refer to my letter of 14th February 2007 and the meeting which took place on 29th March 2007 at your offices with representatives of the Curborough Consortium and myself.
You have asked my clients to provide further explanation as to why they believe that certain Staffordshire Structure Plan policies should be saved beyond September 2007 and in particular how the policies in question comply with Regional Spatial Strategy policies. To set a context for our response, I summarise the points made in our previous letter below.
...
Time frame
As things stand at present, without any emergent Core Strategy in the foreseeable future, and with the Staffordshire Structure Plan only being 'saved' until 28 September 2007, there will effectively be no satisfactory forward planning policy framework for Lichfield District until such time as the RSS is adopted and a new Core Strategy is prepared and also adopted.
Policy Vacuum
There will be an undoubted policy vacuum which will result from a failure to save relevant Structure Plan policies. We say this because the RSS programme does not envisage an adopted Regional Spatial Strategy until 2009 at the earliest. Even then it will not provide District Councils with a full development plan context until such time as their Core Strategies and Site Allocation documents are eventually prepares, which in the case of Lichfield's Core Strategy is not until 2010.
Housing Land Supply
If Staffordshire Structure Plan Policy H1 does not continue to exist, there will be difficulty for Local Authorities in calculating the relevant five year land supply, as no firm basis will exist to establish the 5 year requirement until such time as the final approved RSS housing figures have been produced in 2009. Housing land availability issues have of course assumed extra significance in determining planning applications in the light of government policy on this issue in PPS3 and its importance for development control purposes where future planning applications and appeals are being considered.
Locational Guidance
In addition to providing a development plan base for calculating housing requirements to 2011, the Structure Plans also provide broad locational guidance. The RSS Spatial Options document provides virtually none and this will be the subject of considerable debate at any future RSS Examination.
Lack of Harm
There should be no particular down side arising from the retention of Structure Plan policies. If there is some concern that there may be tension between what exists in a Structure Plan and in the current Regional Strategy, then we do not understand why this should be the case, especially in the light of what we have said about the likelihood of higher housing growth figures being the eventual basis on which the RSS process is concluded.
Turning now to your specific request to us, there are three additional points which we would now like to make.
Step Down Approach to Housing Requirements
RPG11, the current RSS, in outlining the Spatial Strategy for the West Midlands, recognises that the required change of approach will not be achieved immediately but will be a gradual transition over time as policies 'kick in' and the step change is eventually achieved. For this reason, the housing provision for the non MUA's is stepped down from before 2007 to 2007-2011 and eventually to 2011-2021. The annual rate of provision is reduced gradually with the significant reductions not being achieved until after 2011."
The letter then addressed the issues of "Affordable Housing" and "Meeting Housing Requirements in Full", and concluded:
"The Consortium would therefore ask you to consider these points carefully and to conclude that our previous request has substance. Accordingly, we would request again that policies H1, IM1 and IM2 of the Staffordshire Structure Plan should be saved until 2011 or until the new emerging RSS is formally approved by the Secretary of State, whichever comes first. Alternatively, the whole Structure Plan could be saved for the same period if this was considered administratively preferable."
Faced with these conflicting requests, Ms Hunt, the Senior Planning Manager at GOWM, wrote to the Development Plans Manager at South Staffordshire District Council on 9th May 2007:
"The Secretary of State for Communities and Local Government has received a request from the West Midlands Regional Assembly as Regional Planning Body, seeking her agreement to issue a direction to extend particular policies contained within the Staffordshire Structure Plan, beyond the 3 year transitional period.
The Government Office has subsequently received a third party representation in relation to this request from RPS Planning & Development Ltd on behalf of the Curborough Consortium, a copy of which is enclosed at Annex A. The representation is requesting that policies H1, IM1 and IM2 of the Structure Plan (relevant extracts are also enclosed for ease of reference at Annex B) are saved for an extended period of time. In view of this, I am now writing to you to request any comments you may have on the issues raised, and would ask that these are submitted to this office by 23 May 2007. I would also request that you send a copy of any response you may have to Mr Strachan at RPS. If I do not hear from you by 23rd May, I will assume you have no comments and the Secretary of State will make her decision based on all the information available to her.
A copy of the representation from RPS has been sent to all other local authorities within Staffordshire (including the County Council) for comment."
The responses of the local planning authorities were as follows. The City of Stoke-on-Trent said in a letter dated 15th May 2007:
"The City Council was content not to seek retention of Structure Plan policy H1 as strategic housing development targets for the City are provided in adopted RSS. In all other respects it would be inappropriate to make further comments on issues which are more appropriate for authorities more directly affected."
As might have been anticipated, South Staffordshire's response on 16th May 2007 was most emphatic:
"South Staffordshire Council asserts in the strongest possible terms that Structure Plan Policy H1 should not be saved beyond 28 September 2007. In this letter I shall attempt to set out why the reasons why the retention of Policy H1 would seriously undermine the achievement of an Urban and Rural Renaissance for the West Midlands Region.
...
The locational specificity contained in Policy H1 pre-dates RSS and indeed promotes an entirely different strategic approach to the distribution of new housing development. Migration from the MUAs to the shire areas was planned for in the past. In the case of South Staffordshire a maximum allocation of 1,000 dwellings is planned for within Policy H1 between Cheslyn Hay/Great Wyrley and/or further possible developments around the new railway station at Brinsford. This was a reflection of South Staffordshire's location within the Central Crescent of Southern Staffordshire, where the housing needs of the locally generated (indigenous) growth and those of migrants were to be accommodated. It is recognised in the Structure Plan, however, that
'The closeness of the area to the conurbation means migration continues to exert housing pressures on the area to add to the indigenous growth, a large part of which emanates from earlier migration.' ...
RSS (Para 3.2) recognises the impact on the decentralisation process of the availability of development land in settlements close to the MUAs. A number of South Staffordshire's larger villages are 2-3kms from the Black Country MUA:- ...
The Council gives its full support to the comments made by Staffordshire County Council's Cabinet Member — Development Services, copy of letter attached, in recommending to the Regional Planning Body that Policy H1 is not saved beyond 28 September 2007:-
'...In relation to policies that are identified as not appropriate for saving. I would particularly draw your attention to Policy H1. The distribution of housing provision set out in this policy and the locational specificity it contains was a reflection of the previous RPG and as such is no longer considered appropriate in the context of the new RPG/RSS and the sea change in underlying strategy that it contains. While the numbers in Policy H1 provide the proportions referred to in Keith Hill's letter that accompanied the RPG/RSS in June 2004, their application to RPG/RSS county figures is considered inappropriate and misleading for the above reasons and therefore the policy should not be saved.'
The Council takes issue with the comment made by Mr Strachan (RPS) in the penultimate paragraph of page 2 of his letter of 14 February 2007. Mr Strachan considers that RSS Spatial Options document provides virtually no locational guidance regarding housing requirements. RSS Spatial Options (Phase 2 Revision) must be read alongside extant RSS policies and in particular the broad locational guidance regarding where new residential development should be focused. The first sentence of RSS (Chapter 6 'Communities for the Future' para 6.1) states that the Spatial Strategy 'requires a significant redistribution of housing provision'. Policies CF1-CF6 provide the necessary policy guidance to demonstrate that this redistribution should be achieved by focusing attention on the Major Urban Areas (MUAs), with Sub-Regional Foci (Policy CF2) fulfilling a role as a focus for longer-term strategic housing development. Policy CF2(D) clarifies that in rural areas, such as South Staffordshire, the provision of new housing should generally be restricted to meeting local housing needs and/or to support local services, with priority being given to the re-use of previously developed land and buildings within existing villages enhancing their character wherever possible."
The council then referred to the letters from GOWM dated 9th January and 23rd March, and concluded:
"In conclusion the retention of Policy H1 would cause the following harm to the thrust of RSS:
Prejudice the achievement of Urban Renaissance, because of the amount of new market housing, significantly in excess of locally generated needs that would be provided on the edge of the Black Country MUA.
Prejudice the achievement of Rural Renaissance by driving a coach and horses through the Council's agreed strategic approach to the future distribution of housing in South Staffordshire up to 2026.
On behalf of the Council I respectfully urge the Secretary of State for Communities and Local Government not to agree to the request by RPS to retain Policy H1 of the Structure Plan beyond 28 September 2007."
Lichfield District Council's response on 21st May 2007 included the following:
"It seems particularly relevant to your consideration of this request that it is aimed at extending the saved period for policies that relate to a strategic location for housing development, at Fradley within Lichfield District, which is embedded within this broader policy. I understand that the starting point for the consideration of the submissions made by Regional Assemblies in relation to the Structure Plan policies will be the protocol published by the DCLG. The protocol includes a specific test, that saved policies should be in general conformity with the Regional Spatial Strategy and I note that the submission made to you by the Regional Assembly addresses this specific point in coming to the proposal that the policy should not be saved. The submission made includes within its reasoning that, 'The policy guidance to the location of strategic allocations has been wholly overtaken by the policies and strategy of the RSS and in particular the distinctions made between Major Urban Areas Other Large Settlements, Market Towns and rural areas'. The Council would agree that a policy that is superseded by the RSS should not have its life extended beyond the transitional period.
...
• The Structure Plan policy H1 was based upon assumptions in relation to urban capacity that have since been proven to be major underestimates. Both the Regional Spatial Partial Review and the District Council's Core Strategy need to move on from the Staffordshire Structure Plan provisions, in particular to extend their horizon beyond 2011 to 2026 in the context of a new set of assumptions, including household formation and need, and urban capacity. These raise major issues for the region in how to meet the new challenges. In the Council's view the retention of policy H1 would be prejudicial to both of these processes and significantly constrain options at a sub-regional level that need to take account of more up-to-date assessments of requirements in developing spatial strategies. ...
• Given the context and requirements of the new forward planning system, there is a concern that the retention of policy H1 could potentially prejudice the soundness of the Core Strategy. The inclusion of a policy commitment before and beyond 2011 that was based upon evidence that is no longer up-to-date would be a concern in considering the soundness of the Strategy.
In summary, there is no short term requirement for additional growth at Fradley, or to commit now to growth post 2011. Retaining policy H1 would have implications for other parts of Lichfield District and its neighbouring Authorities. It is considered that retention of the policy would prejudice a full and proper consideration of Lichfield District's spatial strategy upto 2026 through the LDF process and may have implications for its soundness. The District Council therefore supports the Regional Assembly request that policy H1 and the implementation policies in relation to Fradley, be deleted."
On 22nd May Staffordshire County Council reiterated the reasons given by the WMRA for not extending the life of policy H1 and amplified the extent to which the regional strategy in the RSS marked a shift from the policies in the 1998 RPG11 which were reflected in Structure Plan policy H1. The letter said this in respect of the RSS — Partial Review — Phase 2:
"RSS11 — Partial Review — Phase 2
The Secretary of State will be aware of the Phase Two revision timetable for RSS11 produced by WMRA indicating the development of a Preferred Option in Summer/Autumn 2007.
The Phase 2 Project Plan makes it clear that the vision for the region will remain unchallenged and that the revisions to the WMRSS will lead to further development of policies to support the underlying strategy. Spatial Options were subject of consultation in January — March 2007. A key objective for the review is identified as 'To re-examine regional and sub-regional housing needs and requirements and how these can be best met in the region up to 2026'. In the introduction to the Spatial Options the parameters of the Phase Two Partial revision are set down and in the second paragraph (page 4) it states that the 'Spatial Options only look at issues that the Secretary of State identified, the current WMRSS and the policies within it remain unchanged'.
With the publication of the Spatial Options consultation, advice has been received from Government Office for the West Midlands (letter 9 January 2007) regarding the use of Option 1 local authority housing provision figures contained therein as a basis for calculating a five-year housing land supply and as a starting point formulating options for LDF Core Strategies.
To conclude in relation to the issues raised by RPS Planning for the Curborough Consortium:
- The County Council does not agree that there is a policy vacuum or dearth of locational guidance to the planning housing strategy in the West Midlands. The summary of the WMRSS (RPG11 June 2004) above clearly identifies different roles for the MUAs, sub-regional foci, other large settlements and rural areas. Lichfield District lies outside the MUA where housing provision should be regarded as a 'maxima' and WMRSS gives direction to ensure that excess over-provision does not serve to encourage further out-migration.
- In relation to calculating a five-year housing land supply GOWM has provided an interim position taking forward the principles of RPG11 ahead of the partial revision.
- Saving policies H1, IM1 and IM2 demonstrated to have been superseded by WMRSS is considered prejudicial to the LDF process and the future consultation on Issues and Options, a fundamental part of how the government envisages local planning authorities should engage in plan-making with local communities.
The County Council would affirm the previous advice to the West Midlands Regional Assembly that policies H1, IM1 and IM2 should not be saved beyond September 2007."
In its letter dated 23rd May 2007 the WMRA said:
"As you [are] aware the Assembly operates a decentralised system whereby a large amount of advice is provided to us by the Strategic Authorities in the Region. In this case we have sought advice from Staffordshire County Council to whom you have also written to separately on this matter. I understand the County Council has replied to you in a letter dated 22 May and they have informed us that this letter constitutes their advice to the Assembly.
Having considered the advice provided by the County Council the Regional Assembly fully support this and would wish to endorse this as the basis of our response to the third party representation for your deliberation."
Tamworth Borough Council said in its letter dated 23rd May 2007 that RPS's representation was:
"... Clearly a knee-jerk reaction to the interim housing guidance which is currently being consulted on which does not highlight Fradley as a sustainable location for growth.
Saving H1 in full will have huge implications for Tamworth Borough Council. It would reinstate a long running debate about 1,000 houses to be allocated by Lichfield District Council north of Tamworth. This debate is no longer relevant given the demise of the Structure Plan and current revisions to the Regional Spatial Strategy (RSS). This direction of growth for Tamworth has not been considered holistically or sustainably. ...
The revision to the RSS is having to deal with changing circumstances particularly in respect of housing numbers and once the preferred option is known it will inform the assessment of what is required and the most sustainable way of delivery. The retention of H1, having regard to the basis on which the housing figures and potential locations for development were approved, is contradictory to the current process as the saved policy will take [precedence] over the evolving RSS revision."
The other five district councils affected by policy H1 made no comment in response to Ms Hunt's letter.
On 30th August 2007 Mr Strachan wrote again to Mr Smith at GOWM referring to his earlier letters and to the meeting on 29th March 2007, and stating that the Curborough Consortium intended to hold discussions with the Government about Fradley becoming a designated eco-town. The letter concluded:
"The Consortium would therefore ask you to consider this important additional issue carefully and to conclude that our previous requests have substance. Accordingly, we would request again that policies H1, IM1 and IM2 of the Staffordshire Structure Plan should be saved until 2011 or until the new emerging RSS is formally approved by the Secretary of State, whichever comes first. Alternatively, the whole Structure Plan could be saved for the same period if this was considered administratively preferable."
Before turning to GOWM's response to these rival contentions as to whether or not policy H1 should be saved for a further period beyond 27th September 2007, it should be noted that the Department for Communities and Local Government had, on 11th April 2007, produced advice on the method of calculating a 5-year housing land supply for the purposes of PPS3 (see above). The advice stated that there should be three main stages in a local planning authority's assessment. The first stage was:
Identify the level of housing provision to be delivered over the following 5 years which, in the first instance, will be from 1st April 2007 to end March 2012. Local Planning Authorities should use, where available, housing provision figures in adopted Development Plans, adjusted to reflect the level of housing that has already been delivered (within the lifetime of the current plan). Where housing provision figures are not available in the Development Plan for the following 5 years, Local Planning Authorities should make the best available estimate of the level of housing required over the full 5-year period. For example, this may include having regard to the evidence underpinning housing provision policies in the emerging Regional Spatial Strategy, projecting forward based upon current Development Plan figures or drawing on other relevant and up-to-date information."
Against the background of the policies and representations referred to above, Ms Hunt prepared a report, dated 3rd September 2007, for Mr Marr. The report summarised RPS's request and the local planning authorities' responses, and referred to the Protocol, the RSS, the Keith Hill Letter, the Phase 2 revision of the RSS, the letter from GOWM dated 9th January 2007, PPG3 and the inspector's report on the Lichfield Core Strategy. In respect of this last item Ms Hunt said:
"Inspector's Report on the Lichfield Core Strategy
The Inspector's Report on the Lichfield Core Strategy considered the issue of development at Fradley. Whilst the Inspector recognised that a Fradley new village could represent a sustainable option for longer-term development to meet the needs in the Lichfield housing market area, (subject to the partial review of the RSS and the extent to which the increased housing requirement may result in increased provision within Lichfield) he considered that specific provision within the Core Strategy for a Fradley new settlement would have resulted in a strategy out of general conformity with the RSS."
Ms Hunt's report concluded:
"Conclusions
In conclusion, it is considered that sufficient information is contained within the RSS and emerging RSS to guide the distribution of housing development in Staffordshire pending the review of Phase 2 of the RSS being published and relevant DPDs being in place without the need for the retention of Policy H1. Furthermore, the distribution of housing provision set out within Policy H1 is considered to be out of general conformity with the strategy of the RSS, as confirmed by the Inspector into the Lichfield Core Strategy.
The correct basis for development at Fradley to be considered is as part of the spatial options that will be considered through the Lichfield Core Strategy which will be prepared within the context of the published and emerging RSS.
It is considered that policy contained within the RSS and PPS3 (which should be taken into account as a material consideration in making planning decisions) is sufficient to ensure sufficient delivery of appropriate sites for housing development until the full development plan at regional and local level is in place.
It is therefore considered that Policy H1 should not be saved for an extended period of time. As a consequence of this, it is considered both inappropriate and unnecessary for related Policies IM1 and IM2 to be saved."
Mr Marr accepted that advice. In a letter dated 7th December 2007 to the WMRA he formally responded to the latter's application for a direction under paragraph 1(3) of Schedule 8. The direction attached to the letter extended the life of the policies specified in a schedule to the direction. Policy H1 is not included in the schedule. Mr Marr's letter said:
"The Secretary of State's assessment of whether saved policies should be extended is based upon the criteria set out in Planning Policy Statement 11 and Communities and Local Government Protocol on saving policies. The Secretary of State's decisions concern some policies where there have been representations from a third party expressing views that differ from those of the Regional Assembly or where her views differ from those of the Assembly. Where these circumstances apply the Secretary of State's reasons for the decision are set out in the table at the end of this letter."
In respect of policy H1, the table said:
"[1] It is considered that sufficient information is contained within the RSS and emerging RSS to guide the distribution of housing development in Staffordshire pending completion of the Phase 2 revision of the RSS.
[2] Furthermore, the distribution of housing provision set out within Policy H1 is deemed to be out of general conformity with the strategy of the RSS, as confirmed by the Inspector into the Lichfield Core Strategy.
[3] Policy contained within the RSS and PSS3 (which should be taken into account as a material consideration in making planning decisions) is sufficient to ensure delivery of appropriate sites for housing development until the full development plan at regional and local level is in place.
[4] It has therefore been decided that Policy H1 should not be saved for an extended period of time. As a consequence of this, it is deemed inappropriate and unnecessary for related Policies IM1 and IM2 to be saved." (Paragraph numbers added for ease of reference.)
It is this decision letter ("the decision letter") which is the subject of the claimants' challenge.
The challenge to the decision
The claimants acknowledge that sub-paragraph 1(3) of Schedule 8 to the 2004 Act confers a very broad discretion on the Secretary of State: she "may direct that for the purposes of such policies as are specified in the direction sub-paragraph (2)(a) does not apply." The decision as to whether the life of a saved Structure Plan policy should be further extended after 27th September 2007 is pre-eminently a question of planning judgment for the Secretary of State. There can be no doubt, from the reasons given in the table accompanying the decision letter of 7th September 2007, that the Secretary of State considered, as a matter of planning judgment, that it would not be appropriate to save policy H1 for a further period because, inter alia, it was "deemed to be out of conformity with the RSS".
In his witness statement in response to the application for judicial review, Mr Marr explained:
"Because of the importance attached by the Government to the delivery of housing, the Government Office has in most cases been prepared to issue a direction to extend the life of housing delivery policies unless there are clear reasons not to do so. One such reason not to do so is if the policy is considered to be out of general conformity with the RSS. This was a key consideration in relation to Policy H1.
Policy H1 relates to housing provision within Staffordshire and Stoke over the period 1996 - 2011. The policy sets out the scale (number of dwellings) that should be completed in individual District's local plans. The strategy also sought to locate significant new housing within the Central Crescent area of southern Staffordshire in accordance with the superseded provisions of RPG11 (1998). In contrast, RPG11 (2004) now seeks a step change in direction, with development being focused on regenerating the Major Urban Areas and other large settlements, thereby limiting the scale of further development in the Central Crescent towns. Therefore, the distribution of housing provision to individual Districts set out in policy H1 was a reflection of the previous RPG11 and was no longer considered appropriate given the 'step change' in the strategy underpinning the current RSS and the emergence of what the Government Office considered to be 'better information', namely the development of the Spatial Strategy Options."
The claimants do not contend that there was procedural unfairness in the manner in which the Secretary of State reached her decision. Such a submission would have been doomed to failure because it is plain that the procedure adopted by the Secretary of State enabled all parties, including the claimants, to have their say as to whether or not policy H1 should be saved for a further period. Both at the meeting on 29th March 2007 and in his letters dated 14th February, 18th April and 30th August 2007 Mr Strachan had ample opportunity to put all of his arguments for extending the life of policy H1.
All of the district councils who had responded to Ms Hunt's letter dated 9th May 2007, and the County Council and the WMRA, had disagreed with Mr Strachan's arguments. The Secretary of State, as a matter of planning judgment, clearly preferred the arguments that had been advanced by the local planning authorities and the WMRA. Why then do the claimants contend that she erred in law in reaching her decision to reject their arguments on the planning merits?
In the claim form the Secretary of State's decision was challenged on three grounds:
Legitimate Expectation
It was contended that the decision not to save policy H1 was contrary to the promise or statement of intention in the Hill letter that, pending completion of the work on the distribution of housing allocations to functional sub-regions, districts should work on the basis of the current Structure Plan proportions to 2011. This gave rise to what was said to be a "clear expectation" that up to 2011 the Structure Plan proportions would be used to calculate the district housing requirements until the further work on the distribution of housing allocations was published by the Secretary of State as a revision to the RSS under section 9(6) of the Act (see above).
The claimants contended that they had relied on this expectation:
"In reliance on this expectation, the first and second Claimants have submitted applications for residential development in South Staffordshire. The first Claimant submitted an application for 560 dwellings in Campions Wood Cheslyn Hay, while the second for 360 dwellings in Featherstone. These applications were made to fulfil the housing requirements set out in the current RSS in accordance with the proportions set out in policy H1 (consistent with Keith Hill's approach).
The third claimants have been involved for several years in the promotion of a site to the north of Lichfield in Staffordshire, at Fradley, known as Curborough, for a new settlement proposal. The site referred to in the policy is for development of 1400 dwellings during the plan period and 1600 dwellings beyond the plan period. This has recently resulted in the submission of an Environmental Impact Assessment Scoping Report to Lichfield District Council and the submission of an eco-town 'expression of interest' document to Central Government (see letter of 30th August 2007 above)."
The claimants submitted that the defendant's reliance on the options in the Phase 2 RSS revision as "better information" (see the letter dated 9th January 2007) was flawed in two respects: (a) because on a proper interpretation of the Hill letter the possibility of "better information" superseding the distribution of housing allocations in the Structure Plan applied only to the period beyond 2011; and (b) because the draft options for the Phase 2 revision of the RSS were at such an early stage of policy evolution that they could not reasonably be described as "better information" in any event. Mr Dove QC on behalf of the claimants submitted that the options were at the pre-policy stage of the process of revising the RSS.
In support of their submissions under ground (1), the claimants referred to the judgment of Laws LJ (with whom Thomas LJ and Nelson J agreed) in Nadarajah and Abdi v Secretary of State for the Home Department [2005] EWCA Civ 1363.
When setting out his conclusions on legitimate expectation, Laws LJ said in paragraph 68:
The search for principle surely starts with the theme that is current through the legitimate expectation cases. It may be expressed thus. Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public. ... a public body's promise or practice as to future conduct may only be denied, and thus the standard I have expressed may only be departed from, in circumstances where to do so is the public body's legal duty, or is otherwise, to use a now familiar vocabulary, a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances."
Inadequate Reasons
The reasons given for failing to save policies H1, IM1 and IM2 in the decision letter were either inadequate, factually wrong or misconceived.
Although the Secretary of State was not required to give reasons for a decision under sub-paragraph 1(3) of Schedule 8 she had chosen to do so and those reasons must therefore stand up to scrutiny: see R v East Hertfordshire District Council, ex parte Beckman(1997) 76 P&CR 333 (a decision to grant planning permission following earlier refusals of permission for identical schemes, where reasons had been given even though, at that time, there was no statutory obligation to give summary reasons for the grant of planning permission).
The decision was contrary to the Department's published policies
The Secretary of State's decision was contrary to a number of her own published policies because (a) it left a policy vacuum, contrary to advice in PPS11 and PPS12; (b) it accorded significant weight to the Options document despite the fact that it was at the very earliest stage of policy formulation, contrary to the advice in PPS1 and PPS12 which makes it clear that significant weight should be attached to an emerging RSS only when it has been through an EIP and the proposed changes have been published; and (c) was contrary to PPS3 because it adversely affected the ability of local planning authorities to identify a supply of housing for a rolling period of 5 years.
While the claimants acknowledge that the Secretary of State was entitled to depart from these, or indeed any other policies, she had to give good reasons for doing so: see EC Gransden & Co Ltd and Falkbridge Ltd v Secretary of State for the Environment [1986] JPL 519, per Woolf J (as he then was) at pages 519-520. No such reasons had been given for the departures from national policies in this case.
Discussion and Conclusions
Ground (1) Legitimate Expectation
I do not accept the claimants' submission that they had a legitimate expectation that the distribution of the housing allocations in the RSS to the district councils would continue to be on the basis of the proportions in the Structure Plan to 2011 until the revision to the RSS containing the new distribution of housing allocations to districts was published by the Secretary of State under section 9(6) of the 2004 Act, for the following three reasons.
First, although I accept the claimants' submission that the advice in the Hill letter as to what should be done by local planning authorities "in the absence of any better information" related to the period beyond 2011, I do not accept their submission that the words "pending completion of the above work" are to be equated with "pending completion of all the statutory processes up to and including publication by the Secretary of State of the revised distribution of housing allocations as a revision to the RSS under section 9(6) of the 2004 Act." The claimants' interpretation of the letter is unduly legalistic. The Hill letter is not to be construed as though it was a statutory instrument. It was not a formal decision letter. It was a letter written by the Minister responsible for planning to the Chairman of the WMRA, drawing attention to the publication of the new RPG11 and giving the WMRA and all of the local planning authorities in the region practical, rather than legal, advice as to how to implement the newly published spatial strategy for the region. In that context "completed" does not mean "formally incorporated into the statutory development plan as a revision to the RSS under section 9(6)"; rather it means sufficiently "complete" so that for planning purposes it could sensibly be used by the district councils as the basis for their housing allocations instead of the Structure Plan proportions.
During the course of his submissions I asked Mr Dove what the position would be if, for example, a draft revision to the RSS incorporating the new distribution of housing allocations had been submitted to the Secretary of State under section 7(1) of the 2004 Act, there had been an EIP, she had received the report of the person holding the examination and had published the changes she proposed to make to the draft under section 9(3), but had not yet considered any representations in response: would the work on the revised housing allocations still be incomplete for the purposes of the Hill letter? Mr Dove was constrained to reply in the affirmative, but submitted that in such circumstances a departure from the legitimate expectation engendered by the Hill letter would probably be regarded as proportionate.
The unreality of that submission is a useful illustration of the dangers of adopting a legalistic approach to correspondence between non-lawyers. It may well be that for a lawyer further work is either complete or it is not complete. However, from the point of view of a practical town planner, it would clearly have been open to GOWM and the WMRA to regard the work on the distribution of housing allocations as sufficiently "complete" for the purposes of replacing the proportions in the Structure Plan if it had been through the EIP process, even though it had not been formally approved under section 9(6).
Whether it would be regarded as sufficiently "complete" at any particular stage of the revision process would be a matter of planning judgment, on which the views of the GOWM, the Assembly and local planning authorities might reasonably differ, although as things turned out they did not.
However, I do accept the claimants' fallback position that even if "completion" in the context of the Hill letter can occur at an earlier stage in the process of revising the RSS than publication of the revision under section 9(6), it could not reasonably have been said that the work on the distribution of housing allocations to district councils had been "completed" on 9th January 2007, the day after the Options document had been published for consultation. At that stage the work referred to in the Hill letter had, in ordinary language, been commenced but not completed. There was therefore a change of policy on the part of GOWM. Even though the work on the revised allocations was nowhere near the stage when it could sensibly be described as having been "completed", GOWM nevertheless took the view that it should be used in preference to the Structure Plan proportions because, even in its embryo state, it represented "better information than the Structure Plan proportions for the purposes of preparing LDFs and therefore ... should be used pending the outcome of the Phase II Review."
This brings me to the second reason why I do not accept that the claimants have the legitimate expectation they allege in ground (1).
Although the principles underlying the doctrine of legitimate expectation apply generally to assurances or promises made by public bodies of all kinds (see per Laws LJ above), in the particular context of Town and Country Planning it is well understood by all of those involved, landowners, developers and local planning authorities, that even the most formally expressed planning policies are always susceptible to change. The catalogue of new and revised policies referred to in this judgment is an illustration of the constant process of change in operation. Thus, the "beneficiary" of a statement of planning policy that is favourable to his interests can have no legitimate expectation that the policy will not be changed. At the most, he can have a legitimate expectation that the policy will be changed only in accordance with the relevant procedure (if one is prescribed by an enactment, or advised in policy guidance); or if there is no established procedure in a manner that is fair in all the circumstances, for example, after giving interested parties an opportunity to make representations as to the implications of changing the policy.
Thus, the claimants could not, as a matter of law (and did not as a matter of fact, see below) assume that the policy approach to the distribution of housing allocations in the Hill letter would remain unchanged until the revision to the RSS was published under section 9(6). The fact that GOWM considered that the Options (and in particular Option 1) for the Phase 2 RSS revision represented "better information" than the Structure Plan proportions and should therefore be used by district councils for the purposes of, inter alia, calculating the 5-year supply of deliverable housing sites for the purposes of PPS3, was apparent from GOWM's letters dated 9th January and 23rd March 2007.
As explained above, the claimants had an opportunity, on several occasions, to explain, both in a meeting and in correspondence, why they contended that the Options document should not be relied on and why Structure Plan policy H1 should be retained as the basis for calculating the distribution of district housing requirements to 2011. The claimants do not contend that there was any procedural unfairness in the manner in which the "policy" set out in the Hill letter in 2004 — to use the current Structure Plan proportions to 2011 until work on the revised housing allocations in the RSS was "completed" — was changed in 2007 to use the RSS Options in preference to the Structure Plan proportions, even though work on the distribution of housing allocations was at an early stage and was far from complete. There was therefore compliance with the only legitimate expectation that the claimants could have had: that any change to the "policy" in the Hill letter would be effected in a fair manner.
The third reason why I am unable to accept ground (1) of the claimants' challenge is that it is clear that the claimants did not, in fact, have the expectation alleged in ground (1) and therefore there could have been no reliance upon any such expectation. In none of Mr Strachan's letters dated 10th January, 14th February, 18th April or 30th August 2007 does he mention the "promise" in the Hill letter that the claimants now seek to rely upon, much less does he contend that the course of action "promised" in that letter could not be changed. All of his arguments were directed to the proposition that, on the planning merits in 2007, it was preferable to continue to use policy H1 rather than the Options document. He was not arguing that because of Mr Hill's "promise" the Secretary of State was required to extend the life of policy H1 under sub-paragraph 1(3) of Schedule 8. Rather, he was arguing that it was desirable on planning grounds that its life should be extended. The allegation that there was a legitimate expectation is a legal construct that postdates the decision letter.
If I am wrong in these conclusions and there was a legitimate expectation as alleged by the claimants, then the question arises:
"... whether denial of the expectation is in the circumstances proportionate to a legitimate aim pursued. Proportionality will be judged, as it is generally to be judged, by the respective force of the competing interests arising in the case. Thus where the representation relied on amounts to an unambiguous promise; where there is detrimental reliance; where the promise is made to an individual or specific group; these are instances where denial of the expectation is likely to be harder to justify as a proportionate measure. ... On the other hand where the government decision-maker is concerned to raise wide-ranging or 'macro-political' issues of policy, the expectation's enforcement in the courts will encounter a steeper climb. All these considerations, whatever their direction, are pointers not rules. The balance between an individual's fair treatment in particular circumstances, and the vindication of other ends having a proper claim on the public interest (which is the essential dilemma posed by the law of legitimate expectation) is not precisely calculable, its measurement not exact. ..."
Per Laws LJ at paragraph 69 of Abdi (above).
Mr Dove submitted that this case was not concerned with "macro-political issues" of policy, but rather with a relatively narrow, technical issue relating to the distribution of housing allocations. The issue is certainly a "technical" one, in the sense that its resolution requires a high level of planning judgment and expertise.
However, I accept Mr Litton's submission, on behalf of the defendant, that although the policy issue is not one of national importance it is certainly of regional importance and it is therefore fairly described as being at the "macro-political" end of the spectrum of decision-making. The wide-ranging impact of the issue affecting, not just one but a number of local planning authorities throughout Staffordshire means that denial of the claimants' expectation on the basis of the Hill letter would be a proportionate response given the importance of the legitimate aim being pursued by GOWM, namely the implementation of the "significant redistribution of housing provision" in the region in accordance with the policies in the RSS.
To the extent that Mr Dove's submission that denial of the claimants' expectation was disproportionate was based on the criticisms of the Secretary of State's decision in grounds (2) and 3, I will deal with those criticisms below. To the extent that his submission was not based on those criticisms, it is impossible to conclude that the Secretary of State's decision not to further extend the life of policy H1 under paragraph 1(3) of Schedule 8, was disproportionate, when all of the district councils who responded to Ms Hunt's letter of 9th May, and the County Council in whose Structure Plan policy H1 was contained, and the WMRA, which was responsible for the revision to the RSS, all contended that policy H1 should not be saved beyond 27th September 2007. They did so because in their collective planning judgment the distribution of housing in policy H1 "was a reflection of the previous RPG and as such is no longer ... appropriate in the context of the new ... RSS and the sea change in underlying strategy that it contains." The Secretary of State agreed: see reason (2) in the table attached to the decision letter. The Secretary of State's wish to ensure general conformity with the strategy in the RSS was a legitimate aim of such importance as to justify changing the "policy" in the Hill letter, whatever the claimants' expectations based on that letter might have been.
Mr Dove submitted that it was implicit in the Hill letter that using the current Structure Plan proportions to 2011 for the distribution for housing allocations between districts would not be inconsistent with the new spatial strategy in the RSS. Inconsistency might arise if they were used for the period beyond 2011. The fact that there was "a significant change in direction" had been recognised in the Hill letter itself. It did not emerge as a new factor in 2007.
In this submission the claimant, again, seeks to read far too much into the Hill letter. In June 2004 work had not even started on the revised distribution of housing allocations to the district councils. That meant that not merely was there no basis for the district councils to work on other than the current Structure Plan proportions, but also the extent to which the continued use of those proportions to 2011 would, or would not, be consistent with the new strategy was bound to be far from clear. Whatever Mr Hill's understanding may have been in June 2004, by January 2007 the district councils, the County Council, the WMRA and GOWM were all better able, in the light of the work that had been carried out in preparing the options (see below), to judge whether continuing to use the Structure Plan proportions to 2011 would be consistent with the strategy in the RSS. Once the Options document had been prepared in January 2007, those bodies were also able to assess whether it could be used to guide the distribution of housing development in Staffordshire pending publication of the Phase 2 revision to the RSS: see reason (1) in the table attached to the decision letter.
There is no mystery as to why GOWM considered that the distribution of housing allocations to district councils in the Options document represented "better information than the Structure Plan proportions for the purposes of preparing LDFs". Using that distribution was more likely to ensure that the LDFs would be in general conformity with the strategy in the RSS. The claimants disagree, but GOWM's view that the Options document was "better information" than the Structure Plan proportions was endorsed, or accepted without demur, by all of the affected local planning authorities. Whatever was said in the Hill letter, if the Secretary of State considered that "better information" was available in 2007, it was not merely proportionate, but highly desirable that she should ask local planning authorities to prepare their LDFs on the basis of that better information.
Mr Dove submitted that when considering the issue of proportionality undue weight should not be placed on the authorities' responses to the 9th May 2007 letter. The letter was not a general consultation exercise, it merely sought the views of the relevant local planning authorities and the WMRA.
That is true, but the submission overlooks the fact that the provisions of Schedule 8 to the 2004 Act, the Protocol and paragraphs 2.57 PPS11 and 5.11 of PPS12 were all public knowledge. It was therefore open to anyone, for example other landowners, developers or house builders, to make representations to the WMRA or GOWM that policy H1 should be saved for a further period beyond 27th September 2007. No such representations were made. No local planning authority supported retention of policy H1. A number of authorities at regional, county and district level opposed its retention. Mr Strachan's was a lone voice in seeking an extension under sub-paragraph 1(3).
Bearing all of these factors in mind, it would have been impossible to conclude that the Secretary of State's decision not to extend the life of policy H1 was disproportionate, even if I had concluded that the claimants did have a legitimate expectation that the policy would be extended. For these reasons, I reject ground (1).
Ground (2) Inadequate Reasons
The table set out three substantive reasons for not extending the life of policy H1 (see above). The fourth reason dealt with policies IM1 and IM2. If policy H1 was not to be extended there was no reason to extend those policies.
In respect of the first reason given in the table, Mr Dove submitted that since there was no distribution of the county-wide figures in the RSS it could not reasonably have been concluded that there was "sufficient information" in the RSS to guide the distribution of housing development in Staffordshire pending completion of the Phase 2 revision of the RSS, and there was no "emerging RSS" because the options were simply that: options to be consulted upon.
I accept Mr Litton's submission that the reasons set out in the table must be read from the standpoint of an informed party, who was well aware of the issues raised and the arguments advanced in the representations to GOWM on this issue: see (albeit in the context of a decision letter on an enforcement notice) the speech of Lord Brown in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 ([2004] UKHL 33), paragraph 36. In his representations Mr Strachan had not contended that there was no emerging RSS, only spatial options, he had argued in his letter dated 30th August that policy H1 should be saved "until 2011 or until the new emerging RSS is formally approved by the Secretary of State, whichever comes first." In the context of the representations made to the Secretary of State by both the claimants and the local planning authorities, there can be no doubt that the reference to the "emerging RSS" is a reference to the Options document. Whether the RSS combined with the Options document provided "sufficient information ... to guide the distribution of housing development in Staffordshire pending completion of the Phase 2 revision in the RSS" was pre-eminently a matter of planning judgment for the Secretary of State. Although the claimants disagree with her view, it could not sensibly be said to have been Wednesbury unreasonable, since it was also the view of all of the responsible local planning authorities at district, county and Regional Assembly level. When considering the "sufficiency" of the Options document it is important to appreciate that, although it was not published for consultation until 8th January, it did not come like a bolt out of the blue to the GOWM or the local planning authorities and others in the West Midlands Region on that day. In her witness statement Ms Hunt explains the provenance of the Options document:
"The technical work that underpinned the development of the Options was undertaken by the Regional Assembly and Section 4(4) authorities [including the County Council] with the involvement of local authorities. A Housing Technical Group (Regional Assembly, representatives from Section 4(4) authorities) and a Housing Reference Group (including bodies such as CPRE, HBF, local authorities) was set up as a sounding block for the emerging options. The development of the Options was also regularly reported to meetings of the Regional Planning Partnership (as detailed on the Regional Assembly website). Local authorities, the private and voluntary sector are represented on the Regional Planning Partnership which is the decision making body for the Regional Planning Body. A copy of the Housing Technical paper that underpinned the development of the Options is attached ... On 16 November 2996, the [WMRA] resolved to approve the Spatial Options which were then to be consulted on for an eight week period beginning on 8 January 2007."
Since GOWM is represented on the Regional Assembly, it would have been well aware of the technical work that had been undertaken in the preparation of the options.
Mr Dove pointed out that the Draft RSS Phase 2 Revision Preferred Option that was eventually submitted by WMRA to GOWM on 21st December 2007 differed from all three of the options in the consultation document. In Table 1 in that document the Indicative Annual Average 2006-2026 for South Staffordshire was 175 dwellings with a net total over the period of 3,500 dwellings. The comparable figures for Lichfield were 400 and 8,000 dwellings, respectively. Moreover, having received the Preferred Option, the Parliamentary Under-Secretary of State, Baroness Andrews, wrote to the Chairman of the WMRA's Regional Planning Partnership on 7th January 2008, saying (inter alia):
"The Spatial Strategy for the West Midlands has a clear focus on the regeneration of the major urban areas. Clearly this is important as sustainable development will rely on the economic drivers associated with those areas. However, the draft RSS Phase 2 Revision does not even make provision for the levels of homes anticipated to be required by the 2004 based household projections.
Let me make it clear that we do not wish to fundamentally question the Spatial Strategy for the region in advance of the Public Examination, but we are concerned that the very rigid application of some of the principles may be unnecessarily constraining longer-term development. I have therefore asked the Government Office for the West Midlands (GOWM) to commission some further work looking at options which could deliver higher housing numbers. The aim will be to provide the Examination Panel with options that could deliver housing numbers which will start to impact on affordability, whilst maintaining as many of the principles of the Spatial Strategy as possible.
We intend to complete this further work by Mid April and in order to provide an opportunity for consultees to consider this additional evidence when making responses on the draft RSS we consider it appropriate to extend the consultation period to the 23 May. ..."
Mr Dove submitted that while these particular events were not foreseeable in September 2007, it was foreseeable that the options in the Options document, because they were merely options, were liable to change.
I accept that it would have been obvious to all concerned, not least GOWM, that the figures set out in the Options document, and in particular the numbers of dwellings allocated to districts in Option 1, would be most unlikely to survive unchanged at the end of the RSS revision process. However, that does not mean that they were incapable of providing "sufficient information" to guide the distribution of housing in Staffordshire pending publication of the revision to the RSS under section 9(6). Nor does it mean that they could not reasonably be regarded as "better information" than the Structure Plan proportions, given that the latter were "deemed to be out of conformity with the strategy in the RSS". It was reasonably open to the Secretary of State to conclude that very provisional (because only at the Options stage) figures which were in conformity with the RSS were "better information" on which to base future planning in the district councils' LDFs than figures in the Structure Plan which were certain, but were not in conformity with the strategy in the RSS.
I have dealt with the first part of the second reason in the table (paragraphs 88-91 above). Mr Strachan's was a lone voice in maintaining that the distribution of housing provision in policy H1 to 2011 would not be out of conformity with the strategy in the RSS.
Mr Dove submitted that the inspector into the Lichfield Core Strategy had not confirmed the view being expressed by GOWM in the table. He relied on the following passages in the inspector's report dated 26th July 2006:
I fully recognise the constraints under which the Council have been working, stemming from the significant change in policy direction represented by RPG11 compared to the strategic context which informed the adopted Lichfield District Local Plan and the revised Staffordshire Structure Plan which followed in 2001. Strategic guidance on the level of provision of housing in Lichfield is derived from the approved RSS, RPG11, Table 1 and policy CF3. This gives figures at County level only and so the Secretary of State indicated in his approval letter that for the period 2021 Local Planning Authorities (LPAs) should apply the same proportions as used in the adopted Structure Plan to calculate district provision. However, he indicated that beyond 2011, although the Structure Plan proportions should be retained in the absence of better information, they may not be appropriate should the result be significant allocations, particularly greenfield, which would be inconsistent with the RSS.
...
... In the circumstances, the reference in Core Policy 4 to meeting the requirements arising from the RSS has to interpreted using the proportional method, which results in a requirement for 7800 dwellings in the period 2001-2021. This figure should be in the Core Strategy, at least in the text. ..."
The passage which Ms Hunt had in mind in her report (the conclusions of which formed the basis of reasons (1)-(3) in the table, see above) was paragraph 2.4 of the Annex to the inspector's report, in which the inspector said, against the background of Lichfield District Council's support at that time for a new settlement at Fradley:
I give considerable weight to the views of the WMRA on the implications for the RSS process of the inclusion of a more specific provision for a Fradley new settlement in this core strategy. They have made it clear that, should it be included, the strategy would not then be in general conformity with the RSS. Putting aside the semantics of whether it really would be a 'new village' in the terms of paragraph 5.17 of the RSS, it would be a sizeable development. I do not agree with the City Council that 3000 dwellings would not be 'noticeable on the regional radar'; it clearly would. It would run directly counter to the Regional Spatial Strategy policies CF2 and 3 because it would be likely to encourage migration from within the Metropolitan Urban Area. I could not recommend a provision which would clearly result in a strategy out of general conformity with the RSS."
Mr Dove pointed to the next paragraph in the Annex, in which the inspector said:
However, it is clear that the partial review of the RSS, which is already under way, is going to be based on revised household projections which suggest a significantly increased housing requirement in the region. It is impossible to say whether this might result in increased provision in Lichfield. In any case, it will almost certainly require a review of the Core Strategy. In view of what was said at the examination, and in the context of what I say in paragraph 2.21 of the main report about flexibility, it seems to be that the Council should consider whether a clearer indication could be given in the text that a Fradley new village could represent a sustainable option for longer-term development to meet needs in the Lichfield housing market area should this option meet with future RSS requirements."
However, this does not gainsay the inspector's conclusion that a Core Strategy in Lichfield's LDF which included Fradley would "run directly counter" to policy CF2 and 3 in the RSS. The inspector's conclusions in paragraphs 2.9 and 2.10 of his report, relied on by Mr Dove, were of course written before, and had therefore been overtaken by, the advice in the letter from GOWM dated 9th January 2007, that the figures in the Options document were "better information".
In respect of reason (3) in the table, Mr Dove submitted that the combination of policies in PPS3 and the RSS could not be sufficient to ensure delivery of the appropriate sites for housing development until the full development plan at regional and local level was in place.
Again, the sufficiency of PPS3 and the RSS, which in this context includes the Options document as part of the emerging RSS (see reason (1) above) to secure this objective was very much a matter of planning judgment for the Secretary of State. Her judgment that these policies would be sufficient was endorsed, or not dissented from, by all of the relevant local planning authorities. I have set out the relevant policies in PPG3, GOWM's letter dated 23rd March 2007 and the Department's advice dated 11th April 2007 as to how to calculate a 5-year housing land supply for the purpose of that Circular. Mr Dove makes the point that the advice states that where housing provision figures in adopted Structure Plans are available, they should be the starting point (paragraph 54 above).
However, that is to ignore the context in which the representations as to whether or not policy H1 of the Staffordshire Structure Plan should be extended were being made. In the letter of 23rd March 2007 GOWM had made it plain that the starting point for demonstrating a supply of deliverable housing sites for the next 5 years, in accordance with PPS3 in Staffordshire, should be the figures in Option 1 in the Options document, although the local planning authorities were also required to express a view as to how Options 2 and 3 in that document could be accommodated.
That advice, which was specific to Staffordshire, was neither expressly nor implicitly overridden by the advice given by the Department a few weeks later, on 11th April 2007, which was of general application and did not relate to the particular circumstances addressed in GOWM's letters dated 9th January and 23rd March 2007.
The Secretary of State was reasonably entitled to conclude, as a matter of planning judgment, that applying the policies in PPS3 and the RSS, including the Options document as part of the emerging RSS, in accordance with the advice given in the letter dated 23rd March 2007, would be sufficient to ensure delivery of appropriate sites for housing.
Mr Dove submitted that the Secretary of State's reasons did not engage with all of the detailed points that had been made in Mr Strachan's letters. That is true, but, absent any statutory obligation to give reasons, the Secretary of State was entitled to give her reasons for not extending the life of policy H1. She was not required to give reasons for those reasons, nor was she required to give a blow-by-blow response to each of the arguments that had been put forward by the claimants.
It is clear that the Secretary of State had regard to the claimants' representations and, on the critically important issues of conformity with RSS strategy and sufficiency of information to guide distribution and ensure delivery of appropriate sites for housing, she preferred the arguments that had been advanced by the local planning authorities to those that had been advanced by Mr Strachan. It follows that ground (2) of the challenge must be rejected.
Ground (3) Contrary to Policy
I can deal quite shortly with this ground of challenge because it is, in large part, a restatement of the claimants' complaints under the headings of lack of proportionality and lack of reasons, with which I have dealt above.
The submission that the Secretary of State's decision is contrary to the advice in PPS11 and PPS12, which gives guidance on transitional arrangements and the saving of policies because the failure to save policy H1 results in a "policy vacuum", is premised on the claimants' contention that there is such a vacuum, but that contention was disputed by the local planning authorities at district and county level and by the Assembly, and the Secretary of State did not accept it. She considered, as she was reasonably entitled to do for the reasons set out above, that there would not be a vacuum because "sufficient information" was contained in the RSS and the emerging RSS. Since the Secretary of State did not accept the claimants' contention that not extending the life of policy H1 would adversely affect the ability of the district councils to identify a supply of housing for a rolling period of 5 years in accordance with PPS3, but instead considered that applying the policies in PPS3 and the RSS while using the figures in Option 1 as advised in the letter dated 23rd March 2007, would be sufficient to ensure the delivery of appropriate sites for housing (see above), her decision was not contrary to the advice in PPS3. Rather, it adapted the national advice, dated 11th April 2007, to the particular circumstances of Staffordshire and, at the risk of repetition, it did so because GOWM's planning judgment was that continuing to use the proportions in the Structure Plan would be out of general conformity with the RSS.
That is also the answer to the final complaint: that in giving significant weight to the Options document, the Secretary of State was departing from the advice in paragraph 4.19 of PPS12, which is echoed in paragraph 18 of PPS1, the Planning System, General Principles:
Local development documents must be in general conformity with the regional spatial strategy or, in London, the spatial development strategy. However, where the regional spatial strategy or spatial development strategy is being reviewed, account may be taken of the strategy's progression through the statutory procedures. The weight to be attached to the revised strategy depends on the stage it has reached. Where the regional spatial strategy/spatial development strategy has been through an Examination in Public, and the proposed changes have been published, considerable weight may be attached to that strategy because of the strong possibility that it will be published in that form by the Secretary of State."
The claimants acknowledge that, generally, the weight to be given to a particular policy, whether emerging or not, is a matter for the Secretary of State: see ELS Wholesale (Wolverhampton) Ltd v Secretary of State for the Environment (1987) 56 P&CR 69, per May LJ at pages 72-73. Thus, the Secretary of State was entitled, as a matter of planning judgment, to depart, in the particular circumstances of this RSS, from the general advice in paragraph 4.19 of PPS12 and to give the Options document substantial weight.
Mr Dove submitted that even if his objections to the defendant's reliance on the Options document under grounds (1) and (2) above were not accepted, the Secretary of State had failed to explain why she had thought it appropriate to depart from the policy that substantial weight should not be given to a revision of an RSS until it had reached a much more advanced stage in procedural terms: see Gransden (above). That complaint again ignores the surrounding context and in particular the Secretary of State's clearly expressed view that the distribution of housing provision in policy H1 was out of conformity with the RSS.
Even though such a view had not been expressed in the Hill letter, which had accepted, in the absence of anything else, the continued use of Structure Plan proportions to 2011, by 2007 things had moved on. Not only had the Options document been published by the WMRA, following a great deal of technical work by local planning authorities contained in the Housing Background Paper and the involvement of a wide range of interested parties (see Miss Hunt's evidence, above), it was possible to give a more informed answer than had been possible in 2004 to the question whether the continued use of the Structure Plan proportions to 2011 would run counter to the strategy in the RSS.
Once it was concluded in 2007 that the answer to that question was "yes", there was a very good reason to give significant weight to the Options document. The figures contained within it were provisional and liable to change, but they were at least considered to be in conformity with the strategy in the RSS. For that reason, they were "better information" than firm figures which were not in conformity with the RSS. The reason why the Secretary of State regarded the figures in the Options document as "better information" and why she gave significant weight to them was clear to all of those, including the claimants, who had made representations as to whether or not policy H1 should be saved for an extended period. For these reasons, I reject ground (3) of the claimants' challenge.
Conclusion
The application for judicial review is dismissed. In the circumstances it is unnecessary to consider the Secretary of State's objection to the claim based on the ground of delay.
That really is the end. You have five minutes, Mr Litton.
MR LITTON: My Lord, I do not think I need five minutes. All I ask for is that there should be an order for costs in favour of the Secretary of State, subject to a detailed assessment.
MR JUSTICE SULLIVAN: Yes.
Miss Forster, I imagine that cannot be resisted?
MISS FORSTER: No, my Lord.
MR JUSTICE SULLIVAN: So the application is dismissed. The claimants are to pay the defendant's, costs, those costs to be the subject of a detailed assessment unless otherwise agreed.
I think we agreed last time, Mr Litton, did we not, that if there was going to be any applications for permission to appeal they would be dealt with in writing?
MR LITTON: My Lord, yes, in the light of the transcript of the judgment as and when it was going to be produced.
MISS FORSTER: My Lord, I understand that — I have to say my instructions are there was a little bit of confusion, on the basis that obviously, normally an application for an appeal would be made orally. Certainly Mr Dove asked me to clarify that the extension of time for the 21 days after the transcript is simply in relation to an application in writing to the Court of Appeal and not i.e. what would be the first application. Because if it is not, then obviously I have been instructed to make an oral application now.
MR JUSTICE SULLIVAN: Yes, which would be rather difficult, since you are, as it were, a complete stranger to the process. I am sorry if there was confusion. What I will say is within 14 days after receipt of the approved transcript, the claimant has permission to apply in writing to me for permission to appeal. So you can apply permission and I will then decide it. I have imposed that limit because I think it is important that any application for permission to appeal is dealt with at least by me before 18th April, which I understand is the deadline for the Secretary of State deciding these three appeals, which are banked up waiting for this case; are they not?
MR LITTON: My Lord, I think it is fair to say that the letter that we wrote was that it would be determined on or before 31st April.
MR JUSTICE SULLIVAN: That is fine.
MR LITTON: So the end of April.
MR JUSTICE SULLIVAN: But in any event it seems to me it is fair enough, you should have 14 days to make your application for permission to appeal to me in writing. Obviously, any consequential applications thereafter for further applications to the Court of Appeal, I will deal with when I make the order on that. Obviously, I will extend it for sufficient time to enable you to appeal to the Court of Appeal, or to ask the Court of Appeal for permission to appeal if I refuse you permission.
MISS FORSTER: I am grateful.
MR JUSTICE SULLIVAN: That sounds a reasonable compromise.
MR LITTON: It sounds entirely reasonable, my Lord, yes.
MISS FORSTER: Thank you, my Lord, you have taken a weight off my shoulders.
MR JUSTICE SULLIVAN: Thank you very much. If you would kindly thank Mr Dove very much for his submissions, Miss Forster. Also I send best wishes to Miss Wigley, who is engaged on something rather more important just at this moment, I think.
MISS FORSTER: Yes, I think she probably is.
MR JUSTICE SULLIVAN: Best wishes to her as well. Thank you all very much.