South Gloucestershire Council v Secretary of State for Communities and Local Government

This is an application under section 288 of the Town and Country Planning Act 1990 to quash a decision made by a Planning Inspector, dated 1 July 2014. The initial grounds of challenge have been amended initially without objection. They were further amended during the course of the hearing before this court. I granted permission to make that further amendment and will set out my reasons for doing so at the relevant juncture in this judgment.

By his decision the Inspector allowed an appeal under section 78 of the 1990 Act against the deemed refusal of planning permission for development at Sloes Well Paddock, Westerleigh Road, Pucklechurch, South Gloucestershire. In allowing the appeal the Inspector granted planning permission for the use of the land for the stationing of a mobile home for residential purposes, together with the formation of hardstanding and utility building ancillary to that use. The application for planning permission was originally made on 13 October 2009. On 5 August 2010, the claimant, which is the local planning authority, resolved that if it had been in a position to determine the application it would have refused it. The resolution by the claimant's Development Control (East) Committee set out the reasons, which in essence turned on the fact that the proposed development was inappropriate development in the Bristol/Bath Green Belt.

An appeal was initially dismissed on 19 November 2010, but that decision was quashed by the High Court in a decision given by HHJ Thornton QC, sitting as a judge of the High Court. In those proceedings an anonymity order was made to protect the identity of the second defendant, who is known as AZ. AZ did not appear at, nor was he represented at, the hearing before me on this occasion.

Before the Inspector, this time round, an inquiry was held over 4 days initially on 17 and 18 September 2013, then on 16 October 2013. The inquiry was closed on that date. However, it was reopened and sat again on 1 April 2014. The reasons why it was reopened were explained by the Inspector at paragraphs 6 to 7 of his decision. He explained that on 11 December 2013 the Council formally adopted its Core Strategy (CS). He also explained that on 6 March 2014 the Government published the on-line Planning Practice Guidance (PPG). Of particular relevance to this appeal was the Housing and Economic Land Availability Assessment chapter. The Inspector stated:

The factual background can be taken from the Inspector's decision at paragraphs 9 to 15. It is unnecessary for present purposes to set out that passage in detail. The site, with which this case is concerned, has an area of about 0.1 hectares and forms a relatively small part of substantially larger landholding (about 1 hectare) located in the countryside between Pucklechurch and the M4 motorway. The site adjoins agricultural land on all sides, apart from its short road frontage to a slip road off Westerleigh Road. There has been unauthorised development on the site. As a result of the planning permission which has been granted, the unauthorised development would be removed and a new development would be sited to the south-east of the present structures. The site would be occupied by AZ, his wife and son.

As the Inspector noted at paragraph 13 of his decision, the planning history of the wider landholding is pertinent to the case. The land was purchased by the appellant's wife in late 2005 and shortly afterwards AZ moved a mobile home on to it. A planning application was submitted in April 2006 for the siting of two caravans for a Gypsy family, that being a reference to AZ, his wife and son. That application was refused in late September 2006. In the meantime the Council had served two stop notices in July and August 2006. Subsequently two Enforcement Notices were issued in August 2006 and two further Enforcement Notices were issued in September 2006.

Appeals against those Enforcement Notices were dismissed. Although the period for compliance with those Enforcement Notices was extended for 6 months. That period ended on 11 January 2008. There was subsequently prosecution of AZ. It would appear that he pleaded guilty at the Crown Court and was given a conditional discharge and ordered to pay the costs of the prosecution.

It is unnecessary, for present purposes, to set out in detail passages in the Inspector's decision save for one material passage, to which I will turn. However, it is important to note the overall structure of that decision to place the issue, which has arisen in this court, within its proper context. At paragraphs 16 to 18 of his decision the Inspector considered the effect of the proposed development on the Green Belt. There was no dispute that the proposals did constitute inappropriate development in the Green Belt. Furthermore, as is well-known, inappropriate development is by definition harmful to the Green Belt and substantial weight is to be given to any harm to the Green Belt. Further, the Inspector noted that there was no doubt that the proposals would result in some loss of openness of this part of the Green Belt. At paragraph 18 of his decision he concluded on this point that there was a significant amount of harm which carried substantial weight against the development.

At paragraphs 19 to 25 in his decision the Inspector turned to consider the effect of the proposed development on the character and appearance of the area. He observed at paragraph 20 that the proposals would be out of keeping with the established character of the area. The provision of a dwelling with ancillary development and paraphernalia will introduce a discordant feature into the countryside, harmful to its character and contrary to relevant policy in the local plan. At paragraph 22 he observed that the development would appear as a now isolated home in the countryside. At paragraph 24 he concluded that overall, provided all the existing unauthorised development was removed, there would be only very limited harm to the appearance of the area. Nevertheless there was some harm, as he accepted. At paragraph 25 he concluded on this point that the identified harm needs to be balanced with the other material considerations advanced in support of the proposals.

At paragraph 26 the Inspector turned to begin to consider the other material considerations in the appeal. He noted in that paragraph that there were four, in particular, which needed to be addressed: they were the personal circumstances of the appellant and his family, the lack of suitable alternative sites, the five-year housing land supply and human rights issues. The Inspector then proceeded to address each of those four material considerations in turn.

At paragraphs 27 to 32 of his decision he considered the personal circumstances of AZ and his family, which he regarded as being of great weight. He took into account, for example, undisputed medical evidence from a consultant, Dr Reeves.

At the end of this part of his decision in paragraph 32, the Inspector concluded that these personal circumstances of the appellant and his family carried very significant weight in favour of the appellant. At paragraph 33 of his decision the Inspector addressed the question of alternative sites. He observed that the Council had not identified any alternative accommodation that would be suitable for the exceptional needs of AZ and his family. He described those needs as being "specific and out of the ordinary". On this point he concluded that this carried weight in favour of the appellant.

At paragraphs 34 to 35 the Inspector addressed the question of housing land supply. Since this passage is at the heart of the present case it is necessary to set it out in full:

At paragraphs 36 to 45 of his decision the Inspector addressed the final of the four material considerations he had identified at paragraph 26, namely human rights considerations. In particular, he had regard to the right to respect for both private life and family life. At paragraphs 46 to 51 the Inspector considered the question whether the harm by reason of inappropriateness and any other harm was clearly outweighed by other considerations. He reminded himself at paragraph 47 that there is an in-principle presumption against inappropriate development in the Green Belt. However, he went on to consider whether there were very special circumstances to justify that inappropriate development and, in particular, whether the inappropriateness and any other harm were clearly outweighed by other considerations.

It is important to note that at paragraph 48 the other material considerations, in other words, those considerations which weighed in favour of the appellant, were regarded by the Inspector as "largely" arising from the personal circumstances of the appellant, his wife and his child. I note that passage because, as the claimant emphasised before this court, the Inspector did not regard the personal circumstances in this case as being the exclusive considerations which weighed in favour of the appeal, only that they largely did so. Ultimately at paragraphs 50 and 51 the Inspector concluded that the harm that this development would cause was undoubtedly outweighed by the other material considerations. He was satisfied that the harm was clearly outweighed by those considerations.

At paragraphs 52 and 53 the Inspector addressed the question whether very special circumstances existed. He answered that question in the affirmative. At paragraph 53 he described the health needs and personal circumstances of AZ as being "truly exceptional". He concluded that paragraph by stating that, "All in all I find that taken together the circumstances can be objectively regarded as very special". Finally in his overall conclusions at paragraph 56, the Inspector stated that he had taken into account all the other matters raised at the inquiry and in the written representations. Overall he concluded that:

As the claimant has submitted before this court, it is clear from that overall conclusion that the material considerations, to which the Inspector was referring, were not confined to the personal circumstances of the appellant and his family, but must refer back to the four material considerations he had identified at paragraph 26 of his decision. As will be recalled, those four considerations included as the third item: "the five-year housing land supply".

Two well-known provisions of the Planning and Compensation Act 2004 need to be set out so far as material. The first, section 38, concerns the status of the Development Plan. The Development Plan for relevant areas of England, including the area of South Gloucestershire, includes, pursuant to subsection (3)(b), the Development Plan documents (taken as a whole) which have been adopted or approved in relation to that area. They would include a document such as the Core Strategy, which this claimant adopted in December 2013. As is well-known, subsection (6) provides that:

The other provision is section 20, which governs the independent examination of Development Plan documents, such as the Core Strategy in this case. Such Development Plan documents must be submitted to the Secretary of State for independent examination, pursuant to subsection (1). Subsection (5) provides that the purpose of an independent examination is to determine in respect of the Development Plan document various matters, including at paragraph (b) "whether it is sound". That is the exercise upon which the Core Strategy Inspector was engaged in the present case. It is to that strategy that I now turn.

The claimant's draft Core Strategy was published on 31 March 2011; the plan period was 2006 to 2027. Therefore, a substantial part of the plan period had already elapsed and a further period would have elapsed by the time the Core Strategy was eventually adopted. After an independent examination, which involved hearings in June and July 2012 and also in March 2013, the Inspector's report was published on 15 November 2013.

Before I turn to the passages of the report which address the question of the supply of housing land, I should mention the National Planning Policy Framework on this point. At paragraph 47 the Framework states that to boost significantly the supply of housing local planning authorities should, amongst other things, identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements. In ordinary circumstances they are also recommended to provide an additional buffer of 5%. However, in certain circumstances, which it is common ground were applicable in the present context, local planning authorities are recommended by the Framework to increase that buffer up to 20% to provide a realistic prospect of achieving the plan supply so as to ensure choice and competition in the market for land.

Against that background I turn to the report of the Inspector on the independent examination into the Core Strategy in this case, so far as it relates to the question of the supply of housing land. At page 15 of that report the Inspector addressed the relevant question there identified as issue 3: "Will the Core Strategy provide for sufficient housing in the most appropriate locations to meet future housing needs?" At paragraph 83 the Inspector concluded that a provision of 28,355 dwellings based on the housing supply position at April 2012 remained an appropriate minimum level of housing provision to be made. That, as I understand it, was therefore the overall housing requirement for the entirety of the plan period from 2006 to 2027, which the Inspector endorsed.

At paragraphs 93 to 98 of his report the Core Strategy Inspector addressed the question of the 5-year housing land supply. He observed that there was a shortfall in supply. This was already apparent because of course a number of years since 2006 had elapsed so the facts were known by this time. The question often arises in such circumstances of how that shortfall should be treated. In essence, there are two options in principle. The first is that the shortfall can be made good by spreading it out on an annualised basis throughout the remainder of the plan period. That would have been until 2027 in this case. The other option is to treat it as part of what needs to be done within the next 5 years of the plan period. Again it will be annualised, but of course it will lead to a higher annual figure because the shortfall has to be made good in 5 years, rather than the remainder of the plan period.

The first of these options has become known around the country as the "Liverpool method" or "residual method", the second option has become known as the "Sedgefield method". The Inspector in his report made reference to these methods at paragraphs 95 and 98. The Inspector observed that there were decisions around the country from other Inspectors which had generally favoured the Sedgefield method (see paragraph 95 of his report). That indeed was also his preference. Nevertheless at paragraphs 96 to 98 the Inspector, in my judgment, carefully considered how realistic that would be in the present context. He observed that ideally it would be desirable to make good past deficiencies as soon as possible. However, he also observed that there is no guarantee that the market would be capable of supporting the uplift in completions on the scale envisaged. This would require annual completion rates in excess of any of these achieved in the last quarter century.

He further observed that based on the residual (Liverpool) method if sites were to come forward, as the Council says is possible, a further 35% of properties could be provided in the course of the next 5 years, 30% in the following 5 years and 15% in the remaining 4 years after 2027. He concluded this section of his report at the end of paragraph 98 in the following terms:

He returned to this topic indirectly at paragraphs 106 to 108 of his report. This is because in that context he considered a suggestion made by the Council that it was minded to make good the deficit occurring during the previous plan period, that is in the run up to 2006 (1,150 units), by including those in its 5-year (plus buffer of 20%) target. However, the Inspector advised against that. Rather he urged caution, as he put it at paragraph 107 of his report, that this aim was ambitious because development of such rates has rarely been achieved since 1989.

On the basis of the Inspector's independent examination, which of course had taken place over many months and had benefited from the participation of many parties, the Core Strategy was eventually adopted, as I have said, in December 2013. The relevant policy in the Core Strategy was Policy CS15, which included both a text on distribution of housing and was followed by a table. The text states:

In the table, which was then set out below the text, several points can be observed. The first is that it was noted that completions, which had already taken place between 2006 and 2013, totalled 5,810. That was clearly less than what the annualised figure over the entirety of the plan period should by then have led to, hence the shortfall which it was already known existed by the time this Core Strategy was adopted. It was envisaged that the total to be completed between 2006 and 2027, that is the entirety of the plan period, would be 28,550. The total available supply for the period from 2013 to 2027 was then shown in columns broken down by reference to three distinct phases. The first of those phases would be for the 5-year period: 2013/14 until 2017/18. That is the relevant 5-year period with which the present case is concerned. The table noted the total available supply, including the 20% buffer required for that first 5-year period, would be 10,125.

It is common ground before this court that the requirement for the coming 5-year period, using the Liverpool method, would be 9,660. Accordingly the available supply envisaged in the table would be sufficient to meet that requirement. However, it is also common ground that if the Sedgefield method were used it would be insufficient because the total required in the following 5-year period would be above 12,000.

There was an explanatory statement attached to Policy CS15 in the Core Strategy. Paragraphs 10.7 and 10.8, in particular, dealt with this topic. At paragraph 10.8 it was noted that the Council would seek to achieve an annualised rate of housing delivery over the 14-year plan period of 2013 to 2027, which equated to 1,610 dwellings per annum. It made reference to paragraph 47 of the National Planning Policy Framework and said the Council would provide an additional buffer of 20%. It went on to state:

As I have mentioned, the on-line National Planning Policy Guidance relevant to this case came into effect on 6 March 2014. Relevant extracts have been placed before the court. At page 88 of the hearing bundle there is the following extract headed: "What is the starting point for the five-year housing supply?, which reads:

It was common ground before this court that that final sentence can only, and does only, relate to the plan-making process. In other words, it is not concerned with specific planning decisions, rather it is concerned with the process for making a development plan document. Clearly the duty to co-operate with neighbouring authorities can only make sense in that context. However, the claimant did not submit before me that the first sentence in the passage quoted could only apply to the plan-making process. Accordingly, as I understood it, it was common ground before this court that at least in principle that first sentence could apply in the decision-taking context, as well as in the plan-making one.

The claimant initially advanced just one ground, that the Inspector was wrong to conclude that the claimant's authority did not have a sufficient housing land supply for the next 5 years. It was submitted that it did have such a supply, as the Core Strategy Inspector had concluded, adopting the Liverpool method. It was further submitted that the present Inspector on this appeal had erred in law by failing to take that material consideration into account.

A second ground was added as an alternative. It was attached to the claimant's skeleton argument. There was no objection to an amendment being made to the grounds to advance this second argument and I granted my permission to amend the grounds at the start of the hearing. Under this ground the claimant contends, in the alternative to the first ground, that if the Appeal Inspector did take the Core Strategy Inspector's views into account, he failed to explain his reasons for taking a different view. In essence, therefore, the second ground is a reasons challenge.

During the course of the hearing before this court the claimant applied for permission to make a further amendment to the grounds to add a third ground of challenge. This was objected to by the first defendant. However, I granted my permission to the claimant to make this amendment and said that I would explain my reasons for doing so in the course of this judgment. I granted that permission because it appears to me that this further amendment raises a pure point of law on which no further evidence would be required.

Contrary to the first defendant's submissions it would not, in my view, be necessary to receive the Appeal Inspector's comments on it, although no doubt, other things being equal, it would normally, as a matter of courtesy if nothing else, be shown to the Inspector whose decision is under challenge in this court. Furthermore, again contrary to the first defendant's submission, allowing the amendment to be made would not, in my view, require an adjournment of this case.

Mr Whale, for the first defendant, submitted that if such an adjournment were caused, then there would be prejudice to the interest of AZ and his family. In the circumstances that point does not arise. Finally I took the view that Mr Whale would be able fairly to address this new ground. As things have transpired he was able fairly to address this new ground in the course of his substantive submissions.

It was common ground before this court that the relevant legal principles, which apply in cases of this kind, were recently and conveniently summarised by Lindblom J in Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) at paragraph 19:

The claimant submits that the Appeal Inspector erred in law in failing to take into account a material consideration, namely the views of the Core Strategy Inspector on the question of whether it had a sufficient supply of housing land for the next 5 years. On behalf of the claimants, Miss Ornsby QC fairly accepts that the Inspector was not bound by the earlier Inspector's views, however she submits that those views were clearly a material consideration: the Core Strategy had recently been adopted in December 2013; there had been a recent and lengthy independent examination by the Inspector, at which numerous parties had been present; and there had been considerable debate about the respective merits of the Sedgefield and Liverpool methods in the context of this particular authority's area and the history of what it had been possible to achieve in the last 25 years.

Miss Ornsby relies, by way of analogy, on the decision of the Court of Appeal in North Wiltshire District Council v Secretary of State for the Environment [1993] 65 P&CR 137. The principal judgment was given by Mann LJ. In particular, reliance is placed on page 145 where Mann LJ was addressing the point that there had been in that case an earlier appeal decision. He said:

As I have said, Miss Ornsby relies on that passage not because it is directly in play, but by way of analogy. Mr Whale is correct to submit that it is not directly on point, because in the present case one is not concerned with two appeal decisions under section 78.

However, in my judgment, there is some helpful analogy to be drawn with the principle as enunciated in North Wiltshire. The fact is that in the present context the Appeal Inspector had before him a recent policy adopted by the local planning authority in its Core Strategy, which was in turn based on the extensive reasoning after considerable debate in the independent examination, to which I have made reference. As is fairly accepted, on behalf of the claimant, the Appeal Inspector was not bound by the views which the Core Strategy Inspector had come to. However, in my judgment, on this particular aspect of the appeal, he was addressing exactly the same issue. That issue was how the housing land supply was to be calculated for the coming 5-year period. He took a diametrically opposed approach to the approach which had been taken just a few months earlier by the Core Strategy Inspector and on which Policy CS15 was based.

On behalf of the claimant, Miss Ornsby also relied on the recent decision of the Court of Appeal in St Albans District Council v Hunston Properties Ltd [2014] JPL 599. The main judgment was given by Sir David Keene. In particular, she places reliance on paragraph 26 where, so far as material, Sir David Keene stated:

On this point I prefer the submissions made to me by Mr Whale for first defendant. As I read it, what Sir David Keene was saying in that passage related to the concept of a "housing requirement figure". In the circumstances of that case there was no local plan in place which dealt with that housing requirement figure. Accordingly the Inspector on a section 78 appeal had attempted, in effect, to replicate the sort of process which would be required. It was that exercise upon which the court was casting doubt. In the present case by way of contrast the housing requirement figure was well-known to all concerned and had been the subject of the Development Plan process. I have already mentioned that housing requirement figure, as it was endorsed by the Core Strategy Inspector in the present context.

On behalf of the first defendant, Mr Whale drew my attention to two recent decisions of this court in support of his submissions that the Inspector in the present case did not err in law in the manner suggested under the first ground of challenge. The first of those decisions is Stroud District Council v Secretary of State for Communities and Local Government [2013] EWHC 3280 (Admin). That was a decision of HHJ Denyer QC, sitting as a Judge of the High Court. In particular, reliance was placed on paragraph 6 of that judgment. Two points are derived from that paragraph, so far as material to the present case. The first is that it was stated in that passage that it would be a nonsense to regard an earlier decision as being binding upon the Planning Inspector. Further, it was said that it would be ludicrous to suggest that the Inspector should be bound by a decision on the facts taken by someone else 30 years earlier.

I do not find that aspect of the decision helpful in the present context. The facts were far removed from those of the present case. There has been a very recent report by the Core Strategy Inspector in the present context. In my judgment that was, in principle, a material consideration to which the Appeal Inspector had to have regard. As is also accepted in the present case, the claimant does not suggest that the views of the Core Strategy Inspector were binding upon the Appeal Inspector. For that reason too it seems to me that the reliance placed by Mr Whale on that part of paragraph 6 is not pertinent.

The second point, which Mr Whale seeks to derive from paragraph 6, is that the Inspector had in that case held an inquiry on the Local Development Plan process. He was not, as such, ruling on a planning dispute, in other words a section 78 appeal. This lay at the root of many of Mr Whale's submissions before this court. He drew attention to the different strategy regimes which govern the independent examination of a Development Plan document (see section 20 of the 2004 Act), and the nature of an appeal on a specific planning decision under section 78 of the 1990 Act.

I accept of course that that statutory distinction needs to be made. Nevertheless, I am not persuaded that in the circumstances of this case the views of the Core Strategy Inspector were not a material consideration. As I have already said more than once, the claimant accepts that the Appeal Inspector was not bound by those views.

The other recent decision, to which Mr Whale drew my attention, was the decision of Lindblom J in Bloor Homes, to which I have already made reference. In this context he drew my attention, in particular, to a lengthy passage at paragraphs 101 to 118. In essence, he submitted, on the basis of that passage, that the question which the Appeal Inspector had to address in the present case was essentially one of planning judgment. He further submitted that the question, in particular, of whether he should prefer the Sedgefield method or the Liverpool method was, as in Bloor Homes, essentially a matter for the planning judgment of each Inspector. He submitted that the issue lies within the territory of planning judgment, "and the court will not go there" (see paragraph 114 of the judgment of Lindblom J). He also drew my attention specifically to paragraph 118 in that judgment, where Lindblom J said that he did not accept that the jurisprudence on consistency in decision-making suggested that in that case the Inspector ought to have explained why he had differed in his approach from the Inspector's and the Secretary of State's in other cases. This was not an instance, said Lindblom J, of like cases having to be decided alike unless there was some specific and cogent reason for deciding them differently.

I do not accept that such weight can be placed on those passages in the context of the present case. Each case has to be decided upon its own facts. As Miss Ornsby submitted before this court, there is a crucial difference between the two cases. What the claimant was seeking to do in Bloor Homes was to draw attention to a number of decisions of Inspectors in other parts of the country and say there had to be consistency with those. That is not the situation in the present case. What Miss Ornsby drew attention to is that there was, just a few months before this appeal decision was taken, a Core Strategy adopted which was based upon an examination concerned with the very same planning area and which dealt with exactly the same issue, namely the Sedgefield/Liverpool methodology.

Furthermore, I accept Mrs Ornsby's submission that, in the circumstances of Bloor Homes, what Lindblom J was drawing attention to was that the Inspector there had carefully given consideration to all the relevant facts. He had indeed, as paragraph 111 of the judgment makes clear, given significant weight to the Core Strategy Inspector's relevant conclusions, and, in particular, to his expectation that shortfalls in housing land supply in the early years of the Core Strategy period would later be overcome.

At the heart of Miss Ornsby's complaint under this ground in the present case is the proposition that the Appeal Inspector here simply never grappled with the views of the Core Strategy Inspector at all. There is certainly no express reference to those views to be found in paragraphs 34 and 35 of the present decision. That by itself, of course, would not necessarily be fatal if the substance had been addressed.

On behalf of the first defendant Mr Whale submits that in substance the views of the Core Strategy Inspector were addressed, but that there had been three significant developments after the Core Strategy was adopted in December 2013. He submitted that they were the following: first, that the National Planning Policy Guidance had come into effect on 6 March 2014; secondly, that the case of Bloor Homes had been decided by this court on 19 March 2014; and thirdly, that at the resumed inquiry on 1 April 2014 the claimant authority did not argue that it was not possible to comply with the Sedgefield method.

In support of that submission Mr Whale drew my attention to the written submissions made by AZ at the resumed inquiry, in particular at paragraph 7(viii) where it was said:

In essence, I accept the claimant's submissions on this ground of challenge.

Going back to the relevant passage in the Inspector's decision at paragraphs 34 do 35, in my judgment, although the Appeal Inspector was not bound by the views of the Core Strategy Inspector, it was incumbent upon him, as a matter of law, to have regard to those views because they were clearly a material consideration. It may well be that the Inspector fell into error because he simply took the view that he did not have to grapple in detail with the Core Strategy Inspector's views as they had become superseded by the publication of the National Planning Policy Guidance. This would appear to explain why the Appeal Inspector said, in effect, that the National Planning Policy Guidance had to be followed insofar as there was any inconsistency between the Core Strategy and that guidance.

In my judgment, that was an incorrect understanding of the effect of the National Planning Policy Guidance. While that was a material consideration, it could not, and did not, simply override the Core Strategy or the views of the earlier Inspector. While the Inspector on the appeal was not bound by those views, he was, in my judgment, required to take them into account; he was, in my judgment, required to address them. They had been set out in great detail after considerable debate at the independent examination. They could not simply be ignored as the Appeal Inspector, in my judgment, did, taking the view that they were superseded by the National Planning Policy Guidance. As section 38(6) of the 2004 Act makes clear:

Of course, at the end of the day there would be a planning judgment for the Inspector to form if he took the view that a subsequent material planning consideration, namely for present purposes the publication of the National Planning Policy Guidance, outweighed other matters. In my judgment, that is not what this Appeal Inspector did. He simply did not take into account the views of the Core Strategy Inspector because, as it seems to me, he did not think that he had to have any regard to them because he considered that they had simply been superseded and overridden by the National Planning Policy Guidance published in March 2014. For those reasons I conclude that the Appeal Inspector erred in law, as submitted under the first ground of challenge.

In the alternative the claimant submits that the Appeal Inspector failed to give adequate reasons to explain why he was taking a different view from the Core Strategy Inspector. Miss Ornsby submits that if, contrary to her first submission, the Appeal Inspector did have regard to the views of the Core Strategy Inspector, he simply did not address those views and did not explain why he was taking a different view.

On behalf of the first defendant, Mr Whale submits that it is apparent what the Appeal Inspector's reasoning was, especially bearing in mind the familiar principles to which I have already made reference, for example, the decision need only address the principal controversial issues between the parties, it does not need to address every material consideration. Further, he reminded me of the familiar principle that the decision was written principally with the parties in mind and they knew what the context was.

I have already explained why, in my judgment, the claimant succeeds on its first ground of challenge. However, if the Appeal Inspector did take into account the Core Strategy Inspector's views on the issue concerned, I accept the claimant's second ground of challenge also in the alternative. In my judgment, the Appeal Inspector at paragraphs 34 to 35 simply did not grapple with the detailed reasoning of the Core Strategy Inspector in this context. The Core Strategy Inspector had been at pains to stress that he too would prefer the use of the Sledgefield method in the present context. However, he had addressed, in some detail, the actual experience in this local planning area over the last 25 years and what therefore it would realistically be possible to achieve. In those circumstances he had come to the overall conclusion that a version of the Liverpool method should be adopted in three timed stages, to which I have already made reference.

As Miss Ornsby submitted to this court, the evidence makes it clear that at the resumed inquiry in April 2014 the parties did place before the Inspector relevant extracts from the Development Plan process, including the Core Strategy Inspector's reports, so far as relevant. None of that is referred to at all in the reasoning of the Appeal Inspector. In the circumstances of the present case, and given the importance of this issue, not only in this case but also for the Local Planning Authority generally, it was incumbent, in my judgment, upon the Appeal Inspector to set out his reasoning explaining why he was taking a different view. All he did, in my judgment, was take the view that the National Planning Policy Guidance had superseded the Core Strategy Inspector's report. He also simply observed, "the Council did not argue that this is not possible".

In the circumstances of the present case, that did not suffice, in my judgment. The position was much more nuanced than that, as would have been apparent to anyone acquainted with the views expressed by the Core Strategy Inspector. Those views were in turn based upon the stance taken by the claimant authority at the examination before him.

The claimant submits that the Appeal Inspector erred in law because he misunderstood the National Planning Policy Guidance in a relevant part. By way of reminder, this is a reference to a sentence which appears in the passage I have already quoted from page 88 of the hearing bundle. That passage states:

This was the subject of the written submissions made on behalf of AZ to the Appeal Inspector at paragraph 6, where it was said that the publication of the PPG is a significant change in policy, there having been no preference expressed in previous policy as to whether the Sedgefield or Liverpool approach is to be preferred. Paragraph 6 went on to state:

In substance, it would appear that the appeal Inspector accepted that submission on behalf of AZ. That would appear to explain why in paragraph 34, which I have already quoted in full, the Inspector said that the first paragraph of the relevant section of the PPG identifies that figures in up-to-date adopted plans, as in this case, should be the starting point for calculating the 5-year supply. He continued:

Miss Ornsby submits that in that passage, quite apart from any other errors of law in his reasoning, the Appeal Inspector erred as a matter of law because he conflated the concept of a housing requirement with the concept of housing supply. In particular, she submits that the housing requirement in this context was well-known to everyone and has been endorsed by the Core Strategy Inspector. That requirement was the figure of 28,355 to be achieved over the entirety of the plan period. No one was disputing that at any stage and certainly not in the section 78 appeal.

On behalf of the first defendant, Mr Whale submits that there was no such error of law committed by the Appeal Inspector. He submits that the housing requirement to be achieved is in part influenced by how a shortfall in supply is to be treated. In my judgment, again the claimant's submissions are well-founded. I do not accept that for present purposes the two concepts of a housing requirement and the housing supply should have been conflated. In my judgment, that is precisely what the Appeal Inspector did in this case. In doing so he fell into error as a matter of law. Accordingly I accept the claimant's third ground of challenge also.

The first defendant submits to this court that even if there was any error of law in the Appeal Inspector's reasoning, the court should decline to quash the decision in its discretion in section 288 of the 1990 Act. Two grounds were advanced on which this submission is based. First, that the decision would necessarily be the same in any event, given the strong indication set out elsewhere in the Inspector's reasoning. As I have already indicated, those other material considerations, to which the Appeal Inspector referred, related very substantially to the personal circumstances of AZ and his family, including his medical circumstances. They also relied in large part on human rights considerations. Secondly, Mr Whale submits that the court has a residual discretion in all cases under section 288 and should exercise it in this case, even if I were to form the view that the decision would not necessarily have been the same in the absence of the errors of law I have found to have been made. He submits that I should exercise that discretion, although it will be unusual to do so, he accepts, in view of the very special considerations applicable to this particular case.

One bears in mind, for example, not just the human rights considerations and personal circumstances, to which I have already made reference, but also the background procedural context. An earlier decision has already been quashed by this court and the matter had to be remitted; some 5 years have elapsed since the initial application for planning permission was made in this case and 4 years since the deemed refusal of planning permission in 2010. AZ and his family, Mr Whale submits, have been kept waiting to know the outcome in the very difficult circumstances identified by the Inspector in this case.

I have some sympathy with those submissions, in particular the second of those bases for exercising the court's residual discretion, however, in the result I have been unable to accept those submissions. In my judgment, the normal course should follow. There were, in my judgment, serious errors of law committed in this case. They have potentially profound consequences, not only for this particular case, but for the local planning authority more generally. It is right, in my judgment, to be concerned that this decision, if it is allowed to stand, will be cited as a precedent in order to cast doubt in substance on the efficacy of its Core Strategy, in particular Policy CS15 in the coming years.

Furthermore, I bear in mind that the Appeal Inspector himself clearly did not regard the personal circumstances of AZ and his family as being dispositive in this case. He himself regarded the adoption of the Core Strategy as being one of the "highly relevant" matters which necessitated the reopening of the inquiry. Furthermore, reading his decision as a whole, as I must do, I do not accept that Mr Whale's submission, that the third of the four material considerations he identified at paragraph 26 simply had no weight placed upon it at all. It clearly did; it featured in the Inspector's reasoning.

In my judgment, it is not for this court normally to pre-empt what the outcome would be if the errors of law I have identified have not been made. That is for an Inspector to determine on the merits. The normal course will follow and the matter will be remitted to another Inspector for consideration on the merits.

For the reasons I have given, this application is granted. The decision of 1 July 2014 will be quashed.

MISS HALL: Thank you. There is an application for the claimant's costs. May I check that you have received our costs schedule?

MR JUSTICE SINGH: Yes, thank you.

MISS HALL: I am grateful. If I may say a couple of points before you turn to my learned friend. You will note that the claimant's costs are a little bit higher than the Treasury Solicitor's costs. That follows the usual pattern of the claimant's costs being a little bit higher in judicial review proceedings. This one is no different. You will also be aware that the Treasury Solicitor's costs and the work on the documents are very similar when you compare them, and the respondent also saw fit to appoint a Grade A fee earner. The solicitor's costs incurred are in fact very similar. The difference comes down to counsel's fees. It is on this I would like to address you very briefly. You will be aware that the Treasury Solicitor's Office operates a reduced panel rate for counsel. There is obviously no expectation that the local authority will be bound to pay anything other than counsel's normal brief fee, and that is exactly what has happened here.

MR JUSTICE SINGH: Why do they have to have a silk?

MISS HALL: Yes, exactly. I submit that this case did require the expertise of a silk predominantly due to the severe implications that you have already outlined in your judgment. There are significant implications for the Council's local planning authority if the judgment that they had no 5-year housing land supply was allowed to make. This has implications for spatial planning of course, South Gloucestershire. As you quoted in your judgment, that Inspector's decision is likely to have been brought up at a subsequent section 78 appeal and CS15 would have been attacked on that basis. In the light of that and those implications, which are set out at paragraphs 11 to 13 in some more detail in Miss Ornsby's skeleton argument for the claimant, in my submission it was completely appropriate for the Council to seek to defend that robustly.

MR JUSTICE SINGH: That may be right. The market dictates what people choose to do. If they want to instruct silks that is fine and that is their right. They negotiate a fee and the market dictates that. No one queries that. The question for the court on a costs order is not to query any of that, but to form a view overall on what the defendant should have to pay on inter parte's costs. Even accepting everything that you have said, I do not see why this could not have been done, for example, by a senior junior of the sort of seniority that Mr Whale is on the other side. I do not myself regard the issues as being particularly complex and the law was relatively well-established and straightforward in, my view.

MISS HALL: You have my submission that the expertise of Miss Ornsby was required in order to defend the 5-year housing land supply point to this extent, and the importance of doing so for the Council. On that basis, my Lord, my submission is that the expenditure was justified and proportionate.

MR JUSTICE SINGH: Thank you.

MISS BLACKMORE: My Lord, the expenditure in this case is not justified or proportionate. I make a few short points. The authorities that have largely been referred to in this case are very old and very well-known authorities, or equally very recent and also very well-known authorities, and the expertise of a Queen's Counsel was not required in this case to argue those points, as my Lord has already observed. Also that has resulted in the instruction of two counsel, both Philip Petchey and then Suzanne Ornsby. There is no reason why the Secretary of State should have to pay those doubly incurred costs. There is no reason why Philip Petchey could not have continued to act in this case, having already had the experience he has had.

A point was made about the involvement of the Grade A fee earner, Garry Howard. That is not correct. This case was predominantly handled by Stephanie Bell, who sits behind me, whose fee rate you see there. Again that reflects the overall proportionality of this case. It did not require a £300 an hour Grade A fee earner doing things, for example, as telephoning counsel's clerk. Making logistical arrangements is not the responsibility of a Grade A fee earner. This is not a judicial review, it is a statutory challenge. Although there is not a direct comparison, it is noteworthy that the Secretary of State's costs (who of course have to retain all the documents, read them afresh and would not have the familiarity that you would expect counsel to have with the case) were in the sum of £5,000, so less than a third of what is sought by my learned friend. I am grateful. Unless there is any other particular aspect I can assist you on?

MR JUSTICE SINGH: No, thank you very much. Do you want to say anything else in reply?

MISS BLACKMORE: Simply to draw your attention to the point that was made before you that Philip Petchey and Susan Ornsby's fees were in some way double counting. There is nothing to say that had Susan Ornsby drafted the grounds there would not have been a separate fee for that as well. It is just that Philip Petchey's fees are claimed separately. I do not think there is a submission that the brief fee for Miss Ornsby would also have covered the grounds. That would have been extended had she covered the whole gambit of that. Also I just simply draw to your attention the fact there has been some savings by Miss Ornsby not having a junior as she would have been entitled to as a silk.

MR JUSTICE SINGH: She would not have been entitled to one.

MISS HALL: It would perhaps have been the normal practice, but that has not been the case.

MR JUSTICE SINGH: These days even in murder cases I have counsel appearing without a junior. Is there anything else you want to say?

MISS BLACKMORE: I simply wanted to remark that there is no way the documents in this case are such that a junior --

MR JUSTICE SINGH: I do not need to trouble you any more, unless there is anything else you want to say.

MR JUSTICE SINGH: The question for the court on this application for costs, as between the parties, is not whether the claimant authority was entitled to instruct a silk or to agree the fees that were agreed in this context, as that is a matter for the free market. It is whether the defendant should have to pay the claimant's costs in full, bearing in mind, in particular, the principles of reasonableness and proportionality. While I have taken into account a number of the specific criticisms which are made of the schedule filed by the claimant on behalf of the first defendant, I take the view that principally the court should stand back and take a view about whether the overall costs claimed of £17,295 are reasonable and proportionate for a case of this type. This case took just under a day to argue in court. It was argued by a senior junior on the part of the first defendant. Initially the claimant instructed junior counsel, Mr Petchey, however, it chose to instruct a Queen's Counsel for the hearing. That was its right and it was within its right to negotiate the brief fee which it did.

However, seeking to do justice overall in the context of this case, and having regard to the experience that the court has of cases of this length and complexity in the Administrative and Planning Courts, I have come to the view that the just figure overall for the first defendant to have to pay in respect of the claimant's costs is the figure of £10,000 inclusive of VAT. Is there anything else?

MISS HALL: No, thank you.

MISS BLACKMORE: I am instructed to make an application for permission to appeal on three principal grounds: the first is that there is a tension with Bloor Homes in this case and the scope of the Inspector's discretion, and that his reasons were adequate for the decision that he gave; the second is in relation to the importance of the relationship between the housing requirements and housing supply; and the third would be the approach to discretion. Clearly I am not counsel who appeared in the case.

MR JUSTICE SINGH: Thank you very much. I am going to refuse permission to appeal. It seems to me that there is no real prospect of success, nor any other compelling reason why an appeal should be permitted to proceed in this case. It seems to me that what I have sought to do is apply well-established principles of law and that each case turns on its own facts. I certainly do not take the view that there will be any tension between my judgment and the judgment of Lindblom J in the Bloor Homes case.

MISS BLACKMORE: Can I ask that time be extended from receipt of the transcript of the judgment for any application that may be made to the Court of Appeal?

MR JUSTICE SINGH: That is not normally done.

MISS BLACKMORE: I appreciate that. I have obviously taken a note of your judgment, as best I can, and will report back to Mr Whale about it. It is really just because both counsel who argued the case before you are not here and hopefully the --

MR JUSTICE SINGH: The trouble is that experience suggests that it can take a very long time for the draft transcript to find its way to the judge. Further, that because I tend to be on circuit, perhaps more than some of my colleagues, that it may well be that it will be in the context of my next circuit duties that I might even get a draft judgment. That process can take quite a long time, I am afraid. I am certainly sympathetic to the idea of giving some extension of time if you want to make an application for that, but not, I think, to leave it open ended so it depends on when the transcript is finalised.

MISS BLACKMORE: If I could then ask for an extension of 14 days with liberty to apply if Mr Whale should feel he does not have adequate information?

MR JUSTICE SINGH: Do you want to say anything about that?

MISS HALL: I do not.

MR JUSTICE SINGH: I am sympathetic to that application. I will grant you an extension of 14 days from the normal time for filing an appellant's notice.

Can you please both draw up a minute of order and agree, if possible, a minute of order in draft which reflects the various decisions which I have made in this case? That includes the permission to amend the grounds that I have made reference to on two occasions, which in fact was applied for, and of course the substantive decision quashing the decision of the Inspector, my decision on costs and also my decision on the time for appealing. Thank you very much. Unless there is anything else? Can I thank you and counsel who appeared at the hearing, through you, for their assistance.