Copas & Anor v Secretary of State for Communities & Local Government & Anor

This is an application made under s.288 of the Town and Country Planning Act 1990 (“the 1990 Act”) to quash the decision of one of the Inspectors of the First Defendant, the Secretary of State for Communities and Local Government, dated 19 February 2014. By her decision the Inspector dismissed the appeal made by the Claimants, Mr James Copas and Mr Richard Copas, against the decision of the Second Defendant, the Royal Borough of Windsor and Maidenhead, to refuse planning permission for the erection of 23 affordable housing units, together with access, parking and landscaping (“the Development”) at the rear of 99-119 Whiteladyes Lane, Cookham, Berkshire, SL6 1RL.

Mr Matthew Reed appears on behalf of the Claimants, who were the applicants for planning permission. Ms Justine Thornton appears on behalf of the Secretary of State.

The Second Defendant is the local planning authority for the area within which the Development is situated. The Council has taken no active part in these proceedings.

By an application dated 23 March 2013 the Claimants sought planning permission for the construction of 23 affordable housing units on Green Belt land in Berkshire. The application was refused by the Second Defendant on 26 June 2013. The Claimants appealed against that refusal. The hearing was held on 21 January 2014, when the Inspector made a site visit. Her decision was issued on 19 February 2014.

The Inspector identified the main issues for the hearing as follows:

“6.

The appeal site lies in the Green Belt. There is no dispute between the parties that the proposed development should be regarded as inappropriate development in the Green Belt for the purposes of the National Planning Policy Framework (the Framework) and Green Belt policies in the Royal Borough of Windsor and Maidenhead Local Plan (LP). I agree with that position.

7.

The main issues therefore are the effect of the proposed development on the purposes of the Green Belt, its openness, its visual amenities and the appearance of the surrounding countryside. The final issue is whether the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations so as to amount to the very special circumstances necessary to justify the development.”

The Inspector dealt with the effect of the Development on the Green Belt and neighbouring land at paragraphs 9-14. She stated:

“12.

The Framework states that substantial weight should be attached to any harm to the Green Belt. In this appeal the harm by reason of inappropriateness, the loss of openness and encroachment into the countryside attracts substantial weight against the proposed development. The conflict with development plan policies GB1, GB3 and GB2 add further weight against the proposal.

13.

… I conclude that the introduction of built development in this location would cause a moderate degree of harm to the open character and visual amenities of the Green Belt, in conflict with LP Policy GB2 criterion B.”

The Inspector considered housing need at paragraphs 15-18. She stated:

“15.

The proposal is entirely for affordable housing. Its provision would go someway towards meeting the need for significant levels of affordable housing across the borough identified in the Council’s Housing Need Study (2005) and Housing Strategy 2008-2011. In rural areas the need amounted to 185 dwellings per annum. Although the 2005 Study is not area specific, the appellants concluded that a high proportion of this particular need is within the Bisham and Cookham Parish as it is one of the Borough’s largest rural settlements in population terms. The more recent Cookham Housing Need Report (commissioned by Cookham Parish Council) identifies a need for 23 affordable homes in the locality. However this report appears to reflect the aspirations of a few people; it is based upon a low return of the postal survey and the identified need is not fully qualified.

16.

The housing need assessments are Borough wide and the evidence indicates that affordable housing does not necessarily have to be provided in Cookham. The Council’s rural exceptions Policy H4 (which I agree with the main parties is not relevant to this appeal proposal as Cookham Rise is not identified in the LP as a Recognised Settlement) is intended to address rural housing needs, setting out the criteria under which affordable housing would be permitted. Whilst a wider need for affordable housing is accepted by the Council and I consider this need is satisfactorily demonstrated in this appeal, the evidence of the number of dwellings required in Cookham is not convincing. This can therefore be given limited weight.

…

18.

… I conclude that the general need for affordable housing attracts significant weight in support of the appeal proposal.”

The Inspector reviewed site availability at paragraphs 19-26. At paragraph 23 she stated:

“On the basis of these assessments, the appellants consider that the need for affordable housing would not be met on sites in the Cookhams which lie outside the Green Belt; that affordable housing can only be delivered through development in the Green Belt and that there are no alternative available sites. As the villages are bordered by the Green Belt the appellants conclude that almost any site would be subject to the same or similar constraints as the appeal site. Their evidence regarding potential housing sites in the identified Green Belt areas, conservation areas and on flood plains and their comparative assessments of the development potential of those sites are persuasive. Furthermore, the Council’s representative indicated at the hearing that he would not necessarily disagree with the appellants’ conclusions about the identified alternative sites.”

As a result, the Inspector concluded at paragraph 26:

“The lack of availability of alternative sites and the fact that such sites will, in all probability, need to be provided in the Green Belt provide significant weight in favour of the appeal.”

At paragraphs 26-28 the Inspector referred, under the heading “Other Matters”, to the nearby Arthur Close development in respect of which planning permission was granted on appeal in 2006 for the construction of 4 flats and 4 houses although the site is located within the Green Belt. The Inspector considered that the decision significantly pre-dated the application of the Framework and the national planning policy context which applied at the time was materially different and so limited weight was given to it.

The Inspector’s conclusions are set out at paragraphs 31-34:

“31.

I have concluded that the development would cause substantial harm due to its inappropriateness, the harm caused to openness and to one of the purposes of including land in the Green Belt. The conflict with development plan policies adds further weight against the development. Further moderate harm against the proposal would be caused by its impact on the character of the area and the visual amenities of the Green Belt.

32.

On the other hand significant weight is given in favour of the proposal due to the need for affordable housing. Some further weight is given to the lack of available alternative sites and the fact that other sites are also likely to be in the Green Belt.

33.

However, the Government have made it clear in their Ministerial Statement of 1^st July 2013 that unmet demand for housing is unlikely to outweigh the harm to the Green Belt and other harm so as to constitute the very special circumstances justifying inappropriate development in the Green Belt.

34.

Having balanced all the material considerations in this case, it is my judgment that the considerations in favour of the development are insufficient to amount to the very special circumstances necessary to clearly outweigh the substantial harm caused by inappropriate development in the Green Belt and the other harms I have identified. Very special circumstances to justify the development have not been demonstrated and the appeal should therefore be dismissed.”

The National Planning Policy Framework (“NPPF”) provides as follows with respect to Green Belt:

“9.

Protecting Green Belt land

79.

The Government attaches great importance to Green Belts. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence.

80.

Green Belt serves five purposes:

•

to check the unrestricted sprawl of large built-up areas;

•

to prevent neighbouring towns merging into one another;

•

to assist in safeguarding the countryside from encroachment;

•

to preserve the setting and special character of historic towns; and

•

to assist in urban regeneration, by encouraging the recycling of derelict and other urban land.

…

87.

As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.

88.

When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.”

The Royal Borough of Windsor and Maidenhead Local Plan is consistent with the NPPF as regards Green Belt development (see paragraphs 6, 8, and 11-13 of the DL).

Section 38(6) of the Planning and Compulsory Purchase Act requires determination to be made in accordance with the development plan “unless material considerations indicate otherwise”. Where it is relevant to the determination of a planning application, a written ministerial statement constitutes a material consideration.

On 1 July 2013 the Parliamentary Under-Secretary of State for Communities and Local Government made a written statement (“the Written Statement”) which states as follows:

“Protecting the Green Belt

Our policy document, ‘Planning Policy for Traveller Sites’, was issued in March 2012. It makes it clear that both temporary and permanent Traveller sites are inappropriate development in the Green Belt and that planning decisions should protect green belt land from such inappropriate development.

As set out in that document and in March 2012’s national planning policy framework, inappropriate development in the green belt should not be approved except in very special circumstances. Having considered recent planning decisions by councils and the planning inspectorate, it has become apparent that, in some cases, the green belt is not always being given the sufficient protection that was the explicit policy intent of Ministers.

The Secretary of State wishes to make clear that, in considering planning applications, although each case will depend on its facts, he considers that the single issue of unmet demand, whether for Traveller sites or for conventional housing, is unlikely to outweigh harm to the green belt and other harm to constitute the ‘very special circumstances’ justifying inappropriate development in the green belt.

…”

Statutory provision for procedural requirements at hearings is laid down in the Town and Country Planning (Hearings Procedure) (England) Rules 2000 (“the Rules”).

Rule 3 provides that the Rules apply to any hearing under s.78 of the 1990 Act. Rule 14 is headed “Procedure after hearing – transferred appeals”. Rule 14(3) provides that:

“If, after the close of the hearing, an inspector proposes to take into consideration any new evidence or any new matter of fact (not being a matter of government policy) which was not raised at the hearing and which he considers to be material to his decision, he shall not come to a decision without first—

(a)

notifying [in writing] persons entitled to appear at the hearing who appeared at it of the matter in question; and

(b)

affording them an opportunity of making written representations to him or of asking for the re-opening of the hearing,

and they shall ensure that such written representations or request to re-open the hearing are received by the Secretary of State within 3 weeks of the date of the notification.”

Section 288 of the 1990 Act provides for an appeal to the High Court against the decision of an inspector. Section 288 provides, so far as is material, that:

“(1)

If any person—

…

(b)

is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds—

(i)

that the action is not within the powers of this Act, or

(ii)

that any of the relevant requirements have not been complied with in relation to that action,

he may make an application to the High Court under this section.

…

(5)

On any application under this section the High Court—

…

(b)

if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action.”

The general principles of judicial review are applicable to a challenge under s.288. In Seddon Properties v Secretary of State for the Environment (1978) 42 P & CR 26 Forbes J summarised the relevant principles which, so far as is material, are that:

In Tesco Stores v Environment Secretary [1995] 1 WLR 759 at 780 Lord Hoffmann stated:

“If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.”

Policy statements must be interpreted objectively in accordance with the language used, read in its proper context: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 at paragraphs 17, 18 and 21, per Lord Reed. The interpretation of policy is a matter for the courts (Environment Agency v R on the application of the Manchester Ship Canal Company Ltd [2013] EWCA Civ 542 at para 23, per Moses LJ).

A decision letter must be read in good faith and references to policies must be taken in the context of the general thrust of the Inspector’s reasoning. In South Somerset District Council v Secretary of State for the Environment [1993] 1 PLR at 80 at 83 Hoffmann LJ stated:

“… as Forbes J said in Seddon Properties Ltd v Secretary of State for the Environment [1978] 42 P&CR at p.28:

‘…it is no part of the court’s duty to subject the decision letter to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute. Because the letter is addressed to the parties, who are well aware of all the issues involved and of the arguments deployed at the inquiry it is not necessary to rehearse every argument relating to each matter in every paragraph.’

The inspector is not writing an examination paper on current and draft development plans. The letter must be read in good faith and references to policies must be taken in the context of the general thrust of the inspector’s reasoning. A reference to a policy does not necessarily mean that it played a significant part in the reasoning: it may have been mentioned only because it was urged on the inspector by one of the representatives of the parties and he wanted to make it clear that he had not overlooked it. Sometimes his statement of the policy may be elliptical but this does not necessarily show misunderstanding.”

In general procedural fairness requires a party to a planning inquiry to know the case he has to meet and to be given an opportunity to deal with it. In Edward Ware New Homes Ltd v Secretary of State for Transport, Local Government and the Regions [2003] EWCA Civ 566 at paragraph 22 Kennedy LJ cited with approval the observations of Ouseley J in Castleford Homes v Secretary of State for the Environment [2001] PLCR at paragraph 65:

“If an Inspector is to take a line which has not been explored… fairness means that an Inspector give the party an opportunity to deal with it. He need not do so where the party ought reasonably to have been aware on the material and arguments presented at the Inquiry that a particular point could not be ignored or that a particular aspect needed to be addressed.”

Kennedy LJ continued at paragraph 23:

“It had not been put to either expert that there was no industrial or commercial future for the site, and on that issue the Inspector was not, as it seems to me, in fairness entitled to form his own conclusion without giving the parties an opportunity, not only to make submissions, but also to ask the experts to assist.”

In Secretary of State for Communities and Local Government v Hopkins Developments Ltd [2014] EWCA Civ 470 Jackson LJ stated at paragraph 61:

“The 2000 Rules enable the Inspector to focus the hearing without confining its scope at the outset. The Rules provide a framework, within which both the Inspector and the parties operate. It remains the duty of the Inspector to conduct the proceedings so that each party has a reasonable opportunity to adduce evidence and make submissions on the material issues, whether identified at the outset or emerging during the course of the hearing.”

Jackson LJ continued (at para 62):

“From reviewing the authorities I derive the following principles:

(i)

Any party to a planning inquiry is entitled (a) to know the case which he has to meet and (b) to have a reasonable opportunity to adduce evidence and make submissions in relation to that opposing case.

(ii)

If there is procedural unfairness which materially prejudices a party to a planning inquiry that may be a good ground for quashing the Inspector’s decision.

(iii)

The 2000 Rules are designed to assist in achieving objective (i), avoiding pitfall (ii) and promoting efficiency. Nevertheless the Rules are not a complete code for achieving procedural fairness…”

The courts will be unlikely to frustrate the legislative purposes of Parliament unless justice requires it (see R v Secretary of State for the Home Department ex p Abdi [1996] 1 WLR 298 at 314-315, per Lord Lloyd). In Pearlberg v Varty [1972] 1 WLR 534 at 545 Viscount Dilhorne said:

“I am far from satisfied that the requirements of natural justice necessitate the supplementing of the statutory provisions…

In the course of his speech [in Wiseman v Borneman [1971] AC 297] my noble and learned friend Lord Reid said, at p.308:

‘Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, … For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation.’

I respectfully agree. I would only emphasise that one should not start by assuming that what Parliament has done in the lengthy process of legislation is unfair. One should rather assume that what has been done is fair until the contrary is shown.”

The Claimants challenge the decision on three grounds:

Mr Reed submits that the Inspector misunderstood the Written Statement and that she considered wrongly that it had a direct application to the present case. He submits that the failure to provide the Claimants with an opportunity to comment on the document substantially prejudiced them. I agree with Ms Thornton that in the circumstances it is sensible to consider the second ground of challenge first.

Mr Reed submits that the Inspector did not correctly record what the Written Statement was dealing with. She simply identified the policy as stating that “unmet demand for housing is unlikely to outweigh the harm to the Green Belt” (para 33). However the Written Statement was specific: it applied only where the “single issue” was one of “unmet demand” for conventional and traveller housing. The Inspector omitted the words “the single issue of” before the words “unmet demand”. “Unmet demand”, Mr Reed submits, related to the concept of the outstanding need for housing within the local authority’s area as part of the assessment of 5 year housing land supply under paragraph 49 of the NPPF in which particular sites are identified to meet housing need, or, at best, the general extent of housing need in the Council’s area.

However the present case went beyond simply a “single issue” of unmet demand. The application related to a particular form of housing, affordable housing; and the Claimants’ case related to the lack of available alternative sites to meet affordable housing requirements within the Cookham area in a way that was either equal to or better than the appeal site and the fact that in all probability the need would have to be met in the Green Belt. It follows that, on what Mr Reed describes as a fair reading of the Inspector’s analysis, she considered wrongly that the Written Statement had a direct application to the present case.

Alternatively Mr Reed submits that the Inspector treated the document as a statement of government policy as to the weight which should necessarily be attached to the affordable housing proposal in this case. That is clear, he submits, from her use of the Written Statement in the concluding paragraphs of the decision letter by directly contrasting at paragraphs 32-33 the terms of the Written Statement to the factors which she had identified the Claimants relied upon. The Inspector treated the Written Statement as of general application without having regard to the proviso that “each case will depend on its facts”. The statement at paragraph 34 of the decision letter to the effect that she had taken into account “all” material considerations does not, he submits, overcome the unlawful use she had made of the Written Statement. Mr Reed submits that the Inspector used the Ministerial Statement to negate or reduce to a very significant degree the circumstances relied upon by the Claimants. The Inspector had not properly engaged with that part of the Ministerial Statement that requires each case to be determined on its own facts.

Mr Reed’s primary submission is that the Written Statement amounted to a variation of the test for determining “very special circumstances” set out in paragraph 88 of the NPPF. He submits that the Written Statement is a variation and extension of what was the position in the NPPF, which the Claimants did not have a proper opportunity to deal with. Paragraph 88 of the NPPF does not indicate that any particular weight is to be attached to any particular issue when assessing whether very special circumstances exist. Nowhere in the NPPF is there an attribution of weight to be attached to any particular factor or the approach to be taken to a particular issue. Mr Reed submits that the NPPF is silent as to what weight should be attached to any matter, including unmet need. However the Written Statement, by contrast, does set out a particular approach to be adopted to a particular issue, and as such it is a significant matter that should have been brought to the attention of the parties. Mr Reed submits that the Claimants were deprived of the opportunity to make their case on the balancing exercise the Inspector had to conduct, having regard to the contents of the Ministerial Statement and its proper application to all the circumstances of the case.

I reject this submission. In my view the Written Statement is clarifying existing policy as set out in the NPPF, not introducing new policy or changing existing policy. The wording of the Statement makes this plain (“As set out… in March 2012 National Planning Policy Framework…The Secretary of State wishes to make clear…”). Further, as Ms Thornton observes, it goes on to use the phrase “unlikely to outweigh harm” rather than saying, for example, “should now be viewed as unlikely”. I accept Ms Thornton’s submission that the issue of weight to be attached to factors is dealt with in paragraph 88 of the NPPF.

In the recent decision of Connors v Secretary of State for Communities and Local Government [2014] EWHC 2358 (Admin) the court was concerned with the same written ministerial statement in the context of considering breaches of Articles 8 and 14 ECHR. Mr Reed points to the fact that the challenge in Connors was not on the basis that the Ministerial Statement unlawfully extended the pre-existing law. However Lewis J observed: “There is nothing intrinsically unlawful about an approach that says that, subject to other considerations, unmet need is unlikely of itself to justify development in the Green Belt” (para 165; and see para 178). There is no suggestion in the judgment of Lewis J that the Witness Statement varied or extended the policy contained in the NPPF.

Further I do not accept Mr Reed’s submission on the construction of “unmet demand” (see para 28 above). There is no reason to interpret the Written Statement narrowly in the way Mr Reed suggests. I accept Ms Thornton’s submission that the third paragraph of the Written Statement means what it says, namely that although each case will depend on its facts, the Secretary of State wishes to make clear that, of itself, unmet demand will not constitute the very special circumstances necessary to justify Green Belt development.

Nor did the Inspector, in my view, make any error in her application of the Written Statement to the case before her. At paragraphs 31 and 32 of the decision letter in the section headed “Conclusion” she indicates that, for her, the unmet need for affordable housing is the main consideration in favour of the proposal to potentially counter the significant harm it will cause to the Green Belt. In the next paragraph (paragraph 35) she then refers to the Statement to make the point that unmet demand does not, of itself, constitute the very special circumstances necessary to justify development in the Green Belt. She then goes on in the next paragraph (at paragraph 34) “having balanced all the material considerations” in the case to express the judgment that she has reached. The weight to be given to material considerations is a matter of planning judgment.

In summary, I reject Mr Reed’s submission that the Ministerial Statement is a variation and extension of pre-existing policy. In my view it provides clarification of the NPPF. If the Ministerial Statement does not extend the NPPF, as I have found, then the Claimants’ contention that there was procedural unfairness in not referring the Ministerial Statement to them for their comment falls away (subject to Mr Reed’s alternative submission referred to at paras 45-46 below).

The primary question for determination at the hearing was whether very special circumstances existed to justify the Development in the light of the harm that was found to exist. The Claimants’ very special circumstances case focused upon the need for affordable housing and the availability of alternative sites to meet the requisite need. The agreed relevant policy position at the hearing was that set out in the local policy and in the NPPF. The Written Statement was not considered at the hearing. Indeed its application and meaning had not been explored with the parties at any stage. Yet when reaching her decision, Mr Reed submits, the Inspector placed significant weight on this policy statement.

Mr Reed submits that the approach in Ware and Hopkins should be adopted. It is not the Claimants’ case that the statutory procedure needs to be supplemented. Accordingly the decisions of ex p Abdi and Pearlberg v Varty are not relevant. In the present case procedural fairness required the Inspector to return to the parties. At the hearing the Inspector led the discussion (see Rule 11, in particular Rule 11(2) and (4)), there was nothing in the NPPF to indicate the weight that the Written Statement required should be given to housing need, and in those circumstances it was unfair to have regard to that matter without giving the parties an opportunity to deal with it.

Even if, contrary to his submission, the Claimants are in effect attempting to supplement the Rules, Mr Reed submits that they can be supplemented in the present case. Rule 14 does not provide a comprehensive code for dealing with matters that arise after an inquiry. The policy existed before the hearing. It was the fact that the Inspector had regard to the Ministerial Statement after the hearing that engaged the principles of natural justice. The Written Statement attributed weight to be attached to the single issue of housing demand when the NPPF had not done so.

It was not reasonable, he submits, to have expected the Claimants to deal with the Written Statement at the hearing as they could not have been reasonably expected to have known that the Written Statement was in issue. Mr Collinge, the Claimants’ planning consultant and representative at the hearing, said in his first witness statement (at paragraph 11) that the Written Statement was not part of the debate. In his second witness statement he adds that neither he nor his clients were actually aware of the Written Statement. In any event the Claimants’ case was based upon a number of issues which together constituted very special circumstances, not a “single issue” of unmet demand.

In relation to the Hopkins decision (para 47) Mr Reed submits that “to know the case he has to meet” involves knowledge of the matters in issue. If the Ministerial Statement does change the pre-existing position then the Claimants would not know from the NPPF the case that they had to meet, and so would not have had a reasonable opportunity to make submissions “in relation to that opposing case”.

Mr Reed did not accept that Rule 14 of the 2000 Rules detracts from or dis-applies the overarching requirements of fairness in this case. Moreover Rule 14 is dealing with new matters of factual evidence, not existing matters of government policy. Mr Reed submits that in this case it is unfair not to return to the parties. Rule 14(3) is not saying that in all circumstances natural justice cannot require the Inspector to return to the parties.

In my view the short answer to this ground is that regulation 14(3) applies to “new evidence” and “new matters of fact”, and expressly excludes “matters of government policy” from the requirement. Mr Reed does not suggest that the Written Statement does not fall within the broad category of “matters of government policy”. That being so, in my view, there is no statutory requirement for the Inspector to have put the Written Statement to the parties before making her decision. I accept Ms Thornton’s submission that if regulation 14(3) be construed as applying to new matters of government policy, there can be no basis for taking a different approach in relation to existing policy.

Ms Thornton submits that the court should be slow to supplement the procedural rules. However she accepts that if justice requires putting the point to the Claimants then even if Rule 14(3) appears to be inconsistent, it must be done. In the present case, she submits, it does not. Ms Thornton acknowledged the statement in Hopkins that the 2000 Rules are not exhaustive, but observes that the court was not there being asked to introduce a requirement at common law inconsistent with statutory rules, in this case Rule 14(3).

However if the Inspector did not err in her interpretation of the statement, as I have found to be the case, the Claimants cannot have suffered the substantial prejudice they allege arising from errors in her interpretation. Nevertheless Mr Reed submits that even if her interpretation was correct, other arguments could have been put forward by the Claimants to establish why, in the circumstances, the policy should not have led to the dismissal of the appeal.

For example it would have been open to the Claimants to argue that the lack of alternatives and the fact that no other better site existed in the Cookham area meant that the terms of the Written Statement should not count significantly against the appeal proposal.

I do not accept that the Claimants have suffered substantial prejudice by not having this opportunity. Ultimately the weight to be given to material considerations, including the ministerial statement, is a matter of planning judgment for the Inspector.

In any event I do not accept that the circumstances of the present case give rise to a concern about injustice. As I have stated, in my view, the Written Statement is a clarification of existing policy set out in the NPPF. That policy was well known to the Claimants who were professionally represented. The influence of the statement was on the Inspector’s balancing of the various considerations once she had established their significance to the case. It did not affect the Claimants’ ability to present the facts or evidence underlying their case. I accept Ms Thornton’s submission that the present case is not comparable with the unfairness identified in the case of Ware on which the Claimants rely.

I am satisfied that the Claimants had a proper opportunity to put their case (see Hopkins at para 62, per Jackson LJ) and that there was no procedural unfairness in the Inspector having regard to the Written Statement in her decision without giving the Claimants an opportunity to address it.

Even when government policy is new after a hearing the Inspector is not obliged to put it to the parties. Parties to a planning inquiry are expected to be aware of developments in government planning policy. In the present case the policy was six months’ old; it had been published in Hansard and on the government website; and as I have found, it did no more than clarify existing government policy. In those circumstances I consider that the Inspector was not obliged to refer the matter to the parties when they had not raised it with her.

The Inspector decided (at paragraph 26) that “significant weight” should be given to the lack of availability of alternative sites and the fact that such sites will, in all probability, need to be provided in the Green Belt. However, when assessing the issues in the conclusions section of the decision letter at paragraph 32 the Inspector ascribed the weight to be attached to the lack of alternatives and the fact that other sites would be likely to be in the Green Belt simply as “some further weight”. This was in contrast to the “significant weight” she gave to the need for affordable housing in the same paragraph.

Mr Reed submits that when the Inspector was undertaking the balancing process, she failed to take into account a material consideration, by mistakenly applying less weight to the issue of alternative sites and the siting of affordable housing provision than she expressly did at an earlier stage in her decision making process. Alternatively, for the same reasons, Mr Reed submits, there is a defect in the reasoning of the Inspector. She had applied different levels of weight to the same issue at different places in the decision letter. However in the circumstances the Claimants cannot know what weight the Inspector attributed to the issue of alternative sites and the need to provide affordable housing in the Green Belt and they have thereby been substantially prejudiced. Mr Reed contends that the Inspector does not say what “some further weight” means. This lack of clarity and reasoning is, Mr Reed submits, particularly important because of the use that the Inspector then makes of the Ministerial Statement.

In my view this ground is without substance. I accept Ms Thornton’s submissions on this issue. Decision letters must be read fairly, as a whole. At paragraph 26 the Inspector is assessing the lack of availability of other sites on its own, and she gives it “significant weight”. In the “conclusion” section at paragraph 32 she has weighed up the various material considerations. In her judgment the lack of availability of sites remains of significant weight but she assesses it as having less weight than unmet need. She then considers the Ministerial Statement. Her assessment is that unmet need is the weightiest factor with the potential to counter the significant harm the development will cause to the Green Belt.

What the Inspector was doing was, Ms Thornton submits, conducting the classic balancing exercise, and there was no inconsistency in the way she conducted it or expressed herself. At paragraph 34 in the DL the Inspector refers to “all the material considerations”. Plainly she has not just considered unmet need.

For the reasons that I have given this application is dismissed.