Robinson v Secretary of State for Communities and Local Government & Anor

THE DEPUTY JUDGE:

Introduction

This is an application made under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") in respect of the decision letter (“the decision letter”) of the Secretary of State's planning inspector ("the Inspector") issued on 25 June 2015, allowing the planning appeal of Withers Trust Corporation, the Interested Party, under section 78 of the 1990 Act and granting planning permission for up to 14 dwellings at The Street, Rushmere St Andrew, Ipswich ("the Site"). The settlement which the site immediately adjoins on its northern and eastern boundaries is known as Rushmere Street. The planning appeal was by way of written representations.

The Claimant is a local resident who has been heavily involved in the community trying to protect the Site from development. She objected to the planning application, and, following its refusal by the local planning authority (contrary to officers' advice), she submitted representations objecting to the planning appeal, both on her own behalf and, separately, on behalf of two local groups.

The Site, of approximately 3.2 acers, was found by the Inspector to have the appearance of a garden, distinct from the open land and sports pitches (which lie to its west and south respectively). It is enclosed by high hedges and used for the cultivation of fruit vegetables and the keeping of bees, the produce from which is used by the local community. Trees have been planned within the Site, many of which are memorial trees, valued by the local community but not protected by tree preservation orders (see paragraphs 5, 9, 15 and 25 of the decision letter).

Outline of the decision letter

The Inspector identified three mains issues in the appeal:

Under the first heading, the Inspector concluded in paragraph 18 "that the proposal would not be unduly harmful to the character and appearance of the area.” This heading included three paragraphs dealing with the development plan to which I shall be coming later. Under the second heading, he concluded in paragraph 22 "that adequate provision would be made for contributions towards local infrastructure ... ". Under the third heading he concluded that "adequate provision would be made for affordable housing ... ".

Under the heading "Other Matters", the Inspector dealt with sustainability and the valuable of the Site to the local community:

The section headed "Planning Balance" reads as follows:

The conditions imposed are of no relevance to the present challenge, and preceded the Inspector's final conclusion that the appeal should be allowed.

Issues

As amended, there are three issues for the court:

Issue (1): Housing Land Supply

The NPPF

Paragraph 647 of the NPPF provides:

"Deliverable" in the second bullet-point is defined in footnote 11:

Paragraph 49 provides that:

Paragraph 14 (presumption in favour of sustainable development) provides that:

The decision letter

The decision letter contains several important references to Housing Land Supply:

I have set out paragraph 30 of the decision letter above.

At the time of the initial planning refusal the local planning authority stated that it had approximately 3.6 years of housing land. In the representations to the Inspector, it stated that its Housing Land Supply Assessment (February 2015) showed that it had increased the amount of housing from 3.7 [sic] years in 2013 to 4.3 years in March 2014, and that figure was not challenged by the appellant, who simply stressed that a 4.3 year housing supply still represented a significant shortfall in housing provision and as such rendered the Local Plan's housing related policies out of date. The Claimant was in no position to, and did not, challenge the figures on housing land put to the Inspector. Accordingly no criticism can be made of the Inspector for relying on the agreed figure of 4.3 years.

Revised Housing Land Supply figures

Approximately one month before the decision (and so it would seem unknown to the Inspector) a public inquiry was held on 19-21 May 2015 in respect of another proposed housing development at Saxmundham within the same local planning authority's area. At this public inquiry the local planning authority relied on its most recently completed monitoring exercise relating to the period up to 31 March 2015 [sic], showing a supply of 4.3 years. This therefore was consistent with the figure put to the Inspector in the Rushmere appeal. But the local planning authority also put forward a further assessment of the position with a base date of 1 April 2016, showing a supply of 5.37 years.

Then on 1 June 2015 (the day before the site visit in the Rushmere appeal) the local planning authority published on its website a document entitled "Housing Land Supply Assessment - March 2015", which stated:

This document ("the new document") appears to have been a revision of whatever was relied on at the very recent Saxmundham public inquiry, since the figure had been refined from 5.37 years down to 5.12.

The Rushmere Inspector was not notified by anyone about the revised figures (and in particular the claimed 5.12 years' supply), nor did the Claimant become aware of the new document until after the decision letter was issued on 25 June 2015.

Presumably the Saxmundham Inspector was also unaware of the new document, since his own decision of 9 July 2015 only referred to the figures of 4.3 years and 5.37 years which had been debated at his public inquiry. He was, however, very critical in his decision letter concerning the 5.37 figure and the methodology which had led to it. His conclusion was that:

However, he rejected the appeal before him on other grounds.

The Claimant's submissions

Whilst no criticism is made of the Inspector, it is claimed that the local planning authority was under a duty to provide to the Inspector its latest housing land supply figures as soon as they reached a sufficiently certain form to be published on its website. Miss Wigley, who appeared for the Claimant, accepts that there was no requirement under the Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2009 ("the 2009 Regulations") for the local planning authority at the outset of the appeal to provide the Inspector with any housing land supply figures (these not being specified in the questionnaire it was required to submit under regulation 5). Nevertheless, once the local authority had relied on housing land figures in its full statement of case which it was required to submit under regulation 14(3), as it had done in this case, it was required to update those figures when different figures became available, as they did in the new document. This was because, in the circumstances of this appeal, they had become "any other information or correspondence you consider we should know about", a heading in box 22.o of the Questionnaire referred to in regulation 5. In her final submission she added that it would be irrational to consider otherwise. She relies principally on four authorities: Patel v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1963 (Admin); [2003] 2 P&CR 17, page 251; R (Connolly) v Havering LBC [2009] EWCA Civ 1059; [2010] 2 P&CR 1; R v Criminal Injuries Compensation Board ex parte A [1999] 2 AC 330; and E v Secretary of State for the Home Department [2004] EWCA Civ 49; [2004] QB.

She relies on Patel as showing that the duty to supply documents required by the questionnaire (in that case relevant adopted supplementary planning guidance) extends to a duty to supply updated guidance, if a relevant change takes place, and that the duty is designed to protect not merely appellants but also interested parties, such as the Claimant. As Collins J said at paragraph 32:

She relies on Connolly as showing that the duty extended not merely to the supply to the Inspector of matters of objective fact, but to expressions of opinion, in that case the adverse opinion the local planning authority had formed about the extensions and alterations to a property, which objection had wrongly not been submitted to the Inspector (see paragraph 20). What the local authority's published position was on housing land supply in its district was a mater of verifiable fact, being the published opinion or judgment of the local planning authority charged with carrying out the assessment under the government's policy and practice guidance.

Even if Patel and Connolly were distinguishable on their facts as being clearer cases of non-compliance with the then applicable regulations, Miss Wigley placed reliance on the reasoning in both cases which depended on procedural unfairness, and drew on passages in ex parte A (relied upon in both cases) and in E (relied upon in Connolly).

Although the facts in ex parte A were markedly different (whether medical evidence relating to alleged buggery had been wrongly withheld), she relied on the underlying thread of Lord Slynn's speech (with which the other members of the House of Lords agreed). At 345 he said:

Then at 347 he said:

In E, paragraph 63, the Court of Appeal analysed the reasoning in ex parte A and its ratio that objectively there had been unfairness. She relied particularly on what Carnwath LJ said in the following paragraphs:

Miss Wigley contended that had the new document been before the Inspector, the balancing exercise he carried out would have been different, because the Inspector "must establish not only whether there is a shortfall [in housing land supply] but also how big it is, and how significant": Crane v Secretary of State for Communities and Local Government [2015] EWHC 425 (Admin), paragraph 71; Phides Estates (Overseas) Ltd v Secretary of State for Communities and Local Government [2015] EWHC 827 (Admin), paragraph 60. If the new document had been supplied to the Inspector, it was highly likely that the outcome of the appeal would have been different. In any event, as the facts of Patel, Connolly, and ex parte A showed, it was not necessary for a claimant to prove that the missing material would necessarily have caused a different outcome, provided that was a realistic possibility. To use the language of E, had the new document been before the Inspector it would have "played a material (not necessarily decisive) part in the tribunal's reasoning".

The submissions of the Defendant and Interested Party

Both Mr Moules for the Secretary of State and Mr Bird QC for the Interested Party (the landowner/developer) emphasised the narrowness of the exceptions to the general rule that the validity of an inspector's decision must be judged on the basis of the evidence before the decision-maker at the date of the decision. It was not enough that there was something more that an objector to an appeal proposal could or might have brought to an inspector's attention, but had failed to do, and Mr Bird emphasised the more restrictive approach followed by the Court of Appeal in Connolly to that of the judge at first instance (see in particular paragraphs 31 and 32).

They emphasised that here the 2009 Regulations had been complied with, so that Connolly was distinguishable on its facts. Patel too was distinguished on its facts, because the new supplementary planning guidance was so obviously relevant that a requirement to update applied to it, whereas the status of the new document was different and it was for the local planning authority to decide whether to draw it to the Inspector's intention. Under box 22.o in the Questionnaire the key words were "you consider we should know about", and the local planning authority's consideration of the matter was subject only to a rationality challenge, which here was in any event unarguable. There was nothing comparable to the police failure in relation to the medical evidence in ex parte A. There could be no reliance on E because the content of the new document was not "an existing fact", let alone uncontentious and objectively verifiable facts (the phrase used by Mr Moules, echoing the language of E). Rather the new document was no more than (to use Mr Moules' description) a prediction. It was merely the local planning authority's assessment in an area where there were many uncertainties, and where differences of view could be taken on a broad range of matters relating to land availability (as shown when the local planning authority's revised figure of 5.37 years land supply had been tested at the Saxmundham public inquiry). As Mr Bird put it, at most it was an objectively verifiable fact that on the publication of the new document in June 2015, the local planning authority had an assessment upon which it might seek to claim that it could (or might at some future point be able to) demonstrate a 5.12 years' worth of deliverable housing sites. He relied upon the asylum decision in Montes and Loiza v Secretary of State for the Home Department [2004] EWCA Civ 404, paragraphs 21 and 23, where Dyson LJ had emphasised that "the principle articulated by this court in E and R was closely and carefully circumscribed"; and to the emphasis placed by Richards LJ on "uncontentious and objectively verifiable" fact in the deportation case, XX (Ethiopia) v Secretary of State for the Home Department [2012] EWCA Civ 742; [2013] QB 656, paragraph 58, and to the identified risk that any extension of the principles in E "would be to subvert the legislative intention that appeals be limited to points of law", paragraph 63.

It had been entirely for the local planning authority to decide whether or not to change its position and put further evidence on housing land availability to the Inspector, especially given the late date at which the new document became available, the experience of the testing at the Saxmundham public inquiry, and the certainty that (if the Inspector were to have been prepared to receive the new document in evidence) there would have been delay in making the decision whilst the appellant responded to the new document. Non-submission by the local planning authority of such opinion evidence was not capable of supporting a finding that the Inspector, in not having that evidence before him, had made a mistake of fact. It would be a novel and incorrect interpretation of the procedure to construe item 22.o as allowing the court in a statutory challenge to find that a local planning authority had breached the 2009 Regulations by exercising a judgment not to provide information. A generalised updating duty would radically alter established procedure for all planning appeals, enabling third parties to impugn appeal decisions simply on the basis that information or opinions that the court considers were relevant to the issues had not been placed before an inspector. Such material might, for example, include the local planning authority's latest traffic assessment.

Both counsel asserted that there was no relevant unfairness to the Claimant, whose case had never been concerned with housing land availability, whereas, so Mr Bird asserted, it would be deeply unfair to his client (whose appeal it was) and contrary to public policy to allow admission of the new document.

Mr Bird also drew attention to planning cases such as Glover v Secretary if State for the Environment (1982) 44 P&CR 359, and Sharif v Secretary of State for the Environment, Transport and the Regions (2000) 80 P&CR 382, where it had been held impermissible to introduce new evidence during a judicial challenge. In the former case at 368 it had been recognised that new evidence might come in where there had been "fraud or some intentional misleading of the inspector" (at 368), but that was not the case here, where the court had no way of knowing why the local planning authority had not sought to introduce the new documents.

Conclusion on Issue (1)

The court must not be drawn into the planning merits. There are, and should be, strict limitations on what new evidence can be introduced following the making of a planning decision. The situation in the present case is markedly different to that in Patel because it was clear that the new supplementary guidance in that case ought to have been drawn to the inspector's attention, whereas the position in respect of the new document here was very much less clear. Aided by further submissions from the parties which the court requested from the parties on this specific issue, I am satisfied that there is no proper basis for implying an updating requirement under the 2009 Regulations on the local planning authority to submit the new document, or at least to attempt to submit it, to the Inspector or that it was acting irrationally in failing to do so. On the other hand I do not consider that Patel or Connolly should be read as confined to situations where there has been a failure to comply with the relevant regulations, though in such situations new material may be more readily admissible. Both cases were decided on a wider basis of objective unfairness, as were ex parte A and E.

The very restrictive reasoning of Wien J in Glover (late evidence of revocation of a country club registration certificate prior to the decision to permit retention of an existing car park for the club held inadmissible) has been overtaken by the wider reasoning on objective unfairness in ex parte A and in E. Although Sharif post-dated ex parte A, that decision was not referred to in the judgment of His Honour Judge Rich QC, who placed considerable reliance on Glover. But in any case a key part of the factual background in ex parte A was that the applicant had been told she should not ask for police statements and that they would be produced at the hearing (at 343). In E, the fact that the claimant in ex parte A "could not fairly be held responsible for the error" was held to be a key factor in its reasoning (paragraph 63), hence the third criterion for "mistake of fact" laid down in paragraph 66 of E ("the appellant (or his advisers) must not have been responsible for the mistake"). By contrast, Mr Sharif (the would-be developer), was at fault, since he had himself been served with the very enforcement notice which he complained had not been brought to the inspector's attention. As the deputy judge said, it was "additional material which he could so easily have adduced at the earlier stage" (at 387). Accordingly Sharif does not stand in the Claimant's way.

Clearly it is in the public interest that development control is carried out on the correct factual basis (see E at 63), and this provides an explanation for decisions such as Patel and Connolly which is wider merely than ensuring compliance with the relevant regulations. But there is a need to safeguard against any and every correction (or purported correction) of factual errors being permissible, and this goes beyond the requirement that the person seeking to introduce the material be not at fault. One approach would be to require that the new material relates to a central part of the case, without having to be necessarily determinative of it. But that is not how the matter has been expressed in the cases (and might have excluded the evidence which was admitted in Patel and Connelly, unless those cases are distinguishable because of the breach of regulations). Rather the emphasis has been on the reliability, objectivity and uncontentiousness of the new material: see the reference to "reliable evidence", and to a test that "if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence". This was an essential element of Carnwath's LJ analysis in E, paragraph 63, of Lord Slynn's reasoning in ex parte A. It led to the formulation of Carnwath LJ’s test of "uncontentious and objectively verifiable" in paragraph 66 of E. The new material in Patel and Connolly met this test, and so would have done the new (then refused) material in Glover. A benefit of this approach is that it prevents the late introduction of unreliable, unverifiable and contentious material.

This is where the present claim falls down. For the reasons advanced by Mr Moules and Mr Bird, the new document, whilst establishing that further work had been done by the local planning authority on housing land supply, cannot be said to be reliable or uncontentious (and this would be so even without the experience of the Saxmundham public inquiry). It might have assisted the discovery of the true position, by leading to a more refined analysis of the extent of housing land (and whether it was still below or now just above the five year threshold). But there is no basis for the court to hold that the untested new document on its own would have resolved that issue. Whereas in Connolly the fact that the local planning authority had objected was relevant to decision-making, the mere fact that there had been a new housing land assessment had no relevance without knowing, and testing, the outcome.

The result is that the claim under this head must fail. There was no breach of the 2009 Regulations and it was a matter entirely for the local planning authority whether to bring the new document to the Inspector's attention. This court does not, and cannot, know why the new document was not put forward. The local planning authority may have been anxious not to expose itself to an application for costs, given the late stage of the proceedings. Save that there is no suggestion, or reason, to believe there was any malign or fraudulent intent in not submitting it, the local planning authority's reason is no concern of this court. Its failure to seek to introduce the new document cannot ground a challenge in this court.

Issue (2): approach to the development plan

The statutory development plan

This consists of the Suffolk Coastal District Local Plan (July 2013) and certain saved policies from the Suffolk Coastal Local Plan. Of relevance to Issue (2) are:

...

(b) relate new housing development to employment services, transport and infrastructure. To achieve this a defined Settlement Hierarchy, itself based on sustainable principles, has been created and applied;

... "

(b) Strategic Policy SP1A - Presumption in favour of Sustainable Development.

This mirrored paragraph 14 of the NPPF, which I have already set out above under Issue (1).

(c) Strategic Policy SP15 - Landscape and Townscape:

"The policy of the Council will be to protect and enhance the various landscape character areas within the district either through opportunities linked to development or through other strategies.

...

Many of the towns and villages in the district are of distinctive historical and architectural value, as well as landscape value and character, and the Council will seek to enhance and preserve these attributes and the quality of life in the generality of urban areas.

This strategy will extend to towns and villages where sites, gaps, gardens and spaces that make an important contribution to a particular location in their undeveloped form will be identified and protected where known; or more generally avoided where development in these locations would lead to coalescence. The location of such sites will be designated through the Site Allocations and Area Specific Policies, Area Action Plan or Neighbourhood Development Plan Document. Until then those sites currently allocated under 'saved' Policy AP28 in the Suffolk Coastal Local Plan (incorporating 1st and 2nd Alterations) will continue to be protected."

(d) Strategic Policy SP27 - Key and Local Service Centres.

It is not necessary to set out this policy which allocated Rushmere Street as a local service centre where housing development would be "permitted within defined physical limits", which the Site lay outside but bordering the limits.

(e) Strategic Policy SP29 - The Countryside:

"The Countryside comprises an important economic, social and environmental asset within the district which it is important to sustain.

The strategy in respect of new development outside the physical limits of those settlements defined as Major Centres, Towns, Key and Local Service Centres or in accordance with Policy SP28 is that it will be limited to that which of necessity requires it to be located there and accords with other relevant policies within the Core Strategy (e.g. Policies SP7 or DM13): or would otherwise accord with special circumstances outlined in paragraph 55 of the National Planning Policy Framework."

(f) Development Management Policy DM3 - Housing in the Countryside

The relevant part of this policy reads:

"New housing will firstly and primarily be directed and integrated within the settlements for which physical limits boundaries [sic] have been defined ... "

Policy DM3 went on to refer to policy SP29 and set narrowly circumscribed types of housing development which alone would be permitted in the countryside.

(g) Saved Policy AP212 - Ipswich Fringe: Open character of land between settlements:

"The District Council will seek to maintain the open character of the land which separates Villages on the Ipswich Eastern Fringe from each other and from Ipswich and Woodbridge, including Rushmere Street from Rushmere; Martlesham Heath from Martlesham; and Martlesham from Woodbridge."

(h) Saved Policy AP228 - Ipswich Fringe: Open spaces near Rushmere Street:

"The District Council recognises the visual importance of the open spaces in the vicinity of Rushmere Street and Humber Doucy Lane, as shown on the Proposals Map, and will not permit development on them, other than as sports grounds or for associated recreational uses."

(I interpose to say that Humber Doucy Lane lies at some distance to the north and west of the site).

The NPPF

The relevant paragraphs to Issue (2) are the same as those already set out under Issue (1).

Statutory provisions

Section 70(2) of the 1990 Act as amended provides that in dealing with an application for planning permission a local authority:

Section 70(2) applies also to appeal decision-making by virtue of section 79(4) of the 1980 Act. Section 38(6) of the 2004 Act provides that:

As Lord Reed JSC observed in Tesco Stores Ltd v Dundee City Council (Asda Stores Ltd Intervening) [2012] UKSC 13; [2012] PTSR 983, paragraph 22:

In R (Hampton Bishop Parish Council) v Herefordshire Council [2014] EWCA Civ 878; [2015] 1 WLR 2367, paragraph 30, Richards LJ said, having cited this passage from Tesco:

In the context of housing land supply, the position of the development plan has been considered in Crane and Phides to which reference has been already been made under Issue (1). In Phides, paragraph 60, Lindblom L (as he then was) said:

The decision letter

I have already set out in paragraph 7 of the decision letter in which the Inspector said of policies SP29 and DM3 that "In so far as they are relate to the proposal those policies are out of date on the basis of the lack of a five year housing land supply"; also paragraph 24 in which the Inspector referred to the Site's identification as a Local Service Centre (clearly a reference to SP27); and paragraphs 29 to 30 in which he purported to carry out the balancing exercise (as he was required to do, having regard to the provisions of the 1990 and 2004 Act). There are only two other paragraphs of the decision letter to which reference is needed:

Paragraph 8:

Paragraph 16:

The Claimant's submissions

Miss Wigley focuses on the Inspector's treatment of policies SP27, SP29 and DM3, only referred to in paragraph 7 of the decision letter. Absent the contents of the new document (see Issue (1) above), she does not criticise his conclusion in paragraph 7 that they were out of date on the basis of the lack of a five year housing land supply. But she contends that he ought to have revisited those policies when he came to strike the planning balance in paragraphs 29 to 32 of the decision letter. Instead he has inferentially assumed that because policies SP27, SP29 and DM3 were out of date, they fell to be ignored in determining the extent to which the application was not in accordance with the development plan and in striking the planning balance.

Had he approached the matter in accordance with the approach in Tesco, Hampton Bishop, Crane and Phides, he might have accorded those policies at the very least the "limited weight" which he seems to have accorded to the non-accordance with the saved policies AP212 and AP228 and Policy SP15 in paragraphs 29 and 30 of the decision letter. Topped up by such weight as was accorded to the breach of policies SP27, SP29 and DM3, the Inspector might have accorded less weight to the shortfall in the housing land supply, and struck the planning balance differently to the extent of refusing planning permission.

The submissions of the Defendant and Interested Party

The Claimant's late amendment to Issue (2) was not opposed. On the other hand it was said to lack merit.

Their starting point was that the Inspector had plainly recognised that the appeal proposal conflicted with the development plan as a whole. It was then entirely for the Inspector to decide the respective weight to be given to the conflicts and benefits. Read as whole that was what the decision had done.

Mr Bird in his Skeleton Argument asserted that:

Accordingly he argued that this was not a case in which the policies in the development plan were ignored or excluded from the overall balance or the balance took place purely within the context of the NPPF. Rather, the Inspector undertook what Mr Bird described as a "staged approach" to the overall balance which complied with statutory duty.

Mr Moules (whose arguments Mr Bird adopted at the hearing) did not suggest that the Inspector in paragraph 7 had been considering, much less explaining, the weight to be attached to non-accordance with Policies SP27, SP29 and DM3. But he argued that, when the decision was read non-legalistically and sensibly as a whole, it was clear that, in striking the balance in paragraphs 29-31 of the decision, the Inspector must have had in mind the non-accordance with those policies and accorded to them either no weight or such limited weight that they did not impinge on the way in which he struck the planning balance. If so, the question of weight was entirely "a matter for the decision maker to judge": Phides, paragraph 60.

If, contrary to this, the Inspector had wrongly assumed that he was bound to give no weight to the non-accordance with those policies, or if he had wrongly left the conflict with those policies out of account, then the decision should still be upheld. The Inspector was well aware of the requirement in saved policies AP212, AP228 and SP15 requiring the protection of gaps, gardens and spaces that make an important contribution in their undeveloped form including gaps between settlements, as was clear from the first sentence of paragraph 16 of the decision. Equally, he was well aware that the appeal proposal was not in accordance with those policies. Nevertheless, the Inspector had found that the proposal would only have a limited effect on the landscape character and would not alter the character or identity of the village or compromise the open gap between the village of Ipswich (see the second sentence of paragraph 16, reiterated in the first sentence of paragraph 29). Therefore there was no basis for supposing that his striking of the balance would have been any different if he had spelled out the zero or limited weight he attached on the non-accordance with policies SP27, SP29 and DM3.

In relation to this aspect of the matter, Mr Bird relied upon a passage in Bolton Metropolitan Borough Council v Secretary of State for the Environment and Greater Manchester Waste Disposal Authority (1990) 61 P&CR 343, beloved by defendants in these sort of proceedings:

Conclusion on Issue (2)

Mr Moules and Mr Bird are of course right that one should not approach inspector's decisions as if they were statutes or legal documents to be construed legalistically. But I do not think that is what Miss Wigley has been doing.

Along with Miss Wigley, I consider that the most probable reading of paragraph 7 (taken in the context also of paragraphs 29-31) is that the Inspector concluded that because the policies were out of date it followed that they could not (in accordance with Policy SP1A and paragraph 14 of the NPPF) have any weight and did not need any further consideration. That was an erroneous view, as is clear from Hampton Bishop, Crane and Phides. I can see no reason to infer that the Inspector ever gave any separate consideration to the question of weight, once he had decided that the policies were out of date. Had he done so, it is most improbable that the policies would have received no mention at all in the otherwise nuanced wording of paragraphs 29-31. In fairness to the Inspector, these cases were all recently decided, and (as can happen in cases decided under the written representations procedure) some legal considerations get left out of account.

Finding then, as I do, a legal error in the Inspector's approach, the question arises whether the challenge should succeed. In section 288 proceedings, the test for a claimant is not quite as demanding as that applied in judicial review ("highly likely that the outcome for the applicant would not have been substantially different") under section 31(2A) of the Senior Courts Act 1981, as recently amended. Sometimes the question is formulated in terms of Bolton ("might have made a difference"), sometimes in terms of Simplex (GE Holdings Ltd v Secretary of State for the Environment (1989) 57 P&CR 306 ("would necessarily have reached the same conclusion if he had not acted on the erroneous factor"). The latter test may be slightly more favourable to the claimants, though Mr Bird argued that the two tests were really the same. But whichever test is applied, I am satisfied that this challenge cannot succeed. It is abundantly clear from the decision letter that the Inspector had very much in mind the importance accorded by the development plan to the protection of the countryside and of strategic gaps (see paragraphs 16 and 29 of the decision). This protection involved not building outside settlement boundaries, such as those of Rushmere Street. Thus in reality conflict with the out-of-date policies referred to in paragraph 7 of the decision added nothing of significance. Had the Inspector addressed his mind to the question of harm caused by non-compliance with those out-of-date policies (which complemented the other countryside policies) it is inconceivable that he would have attached sufficient weight to affect in any way the outcome of the decision. In short, the Claimant (or her advisers) have correctly identified a legal error in the decision, but not one which should lead to its quashing on the particular facts of this case.

Issue (3): the Site as a valued community facility.

The NPPF

One of the "three dimensions to sustainable development" identified in paragraph 7 is:

This dimension is then explained in section 8 of the NPPF ("Promoting Healthy Communities"). Paragraph 69 begins:

Then paragraph 70 states that:

"Open spaces" are then dealt with in paragraphs 73 and 74:

"Open space" is defined in the glossary to the NPPF:

Paragraphs 76 and 77 address the identification and designation of "green areas of particular importance to them", as "Local Green Space, a designation which "will not be appropriate to most green areas or open space".

The decision letter

I have already set out paragraphs 25 and 29 in which the Inspector addressed the loss of the Site "as a community garden", and attached "limited weight" to this.

The Claimant's submissions

Although the Inspector had not ignored the Site's value to the local community, he had failed to consider it in the correct policy context. He accepted that the Site was "valued by the local community". The Site therefore constituted "valued facilities", against the "unnecessary loss" of which the Inspector was required to "guard" pursuant to paragraph 70 of the NPPF. The Inspector also erred by failing to have regard to paragraphs 69-70 of the NPPF, including the requirement to "plan positively for the provision of shared space".

The Inspector further erred by failing to apply paragraph 74 of the NPPF which guards against the loss of existing open space. In particular he had carried out no assessment of the Site under the three bullet points in paragraph 74. The broad range of open spaces to which paragraph 74 applies would plainly include an open space valued by the local community as a community garden and for other informal access: see R (Loader) v Rother District Council [2015] EWHC 1817 (Admin) paragraphs 68-73.

Further, in paragraph 25 of the decision letter, the Inspector misdirected himself in holding that "in the absence of any formal arrangement for use of the site as a community garden I can give only limited weight to this matter". There is no such legal requirement, nor does section 8 of the NPPF anywhere require that a site have formal arrangements for its use before any significant weight can be placed on its retention.

Although Miss Wigley accepted that there had been no reference to the contents of section 8 of the NPPF in any of the written representations which were before the Inspector, the balancing exercise carried out by him in paragraphs 29-32 of the decision letter was in the context of Strategic Policies SP1 and SP1A (both referred to in paragraph 32 of the decision letter, and the text of which has been set out above under Issue (2)). In line with paragraph 14 of the NPPF, SP1A required that the Inspector assess the balance between adverse impacts and benefits "against the policies of the [NPPF] taken as a whole", and therefore including the contents of section 8 of the NPPF. He had not done this. Where the facts and circumstances fell closely within the principle of a particular policy in the NPPF, then an inspector was bound to assess it against that policy.

In her skeleton argument Miss Wigley also included reference to the local authority's decision on 28 July 2015 to add the Site to its register of Assets of Community Value. But this was rightly not pursued in her oral submissions: see R v Secretary of State for the Environment, ex parte Powis [1981] 1 WLR 584, 595.

Submissions of the Defendant and Interested Party

First, the Inspector expressly considered the loss of the garden to the local community in paragraphs 25 and 29 of the decision letter. Additionally he had considered the value of the Site in terms of landscape and maintaining open space between settlements elsewhere in the decision letter. Accordingly insofar as the Site had any material public value the Inspector fully considered it.

Second, the Claimant's reliance on paragraph 74 of the NPPF was misplaced. It was not mentioned in the officers' report or the reasons for refusal. Nobody had suggested to the Inspector that paragraph 74 was engaged. Inspectors had to deal with the materials and cases put before them by the parties, and what Mr Moules in oral argument described as an impossible task must not be imposed on them.

Third, the evidence before the Inspector did not clearly establish that it was a paragraph 74 case. The unchallenged evidence was that the Site was in private ownership, its lawful use was agricultural and that the public had no right of access. Therefore the Inspector was reasonably entitled to give only limited weight to the Site's public value. The weight to be given to the Site's public value was for the Inspector, subject only to rationality review by the court. The Claimant did not even suggest that the Inspector's conclusion on the matter was irrational. In Mr Bird's submission it was the only reasonable conclusion open to the Inspector.

Fourth, the Claimant was reading the final sentence of paragraph 25 of the decision in an artificial and legalistic way in suggesting that the Inspector considered himself bound to give limited weight to the Site's public value given the absence of formal access arrangements. Rather he was setting out his own judgment on the weight to be accorded to the Site's value given the facts.

Mr Bird also drew attention to the apparent distinction between "green areas" and "open space" in paragraph 77 of the NPPF. He tentatively questioned whether agricultural land such as the Site fell within the ambit of "existing open space" in paragraph 74.

Conclusion on Issue (3)

Substantially for the first four reasons advanced by Mr Moules and Mr Bird, I reject this ground of challenge. But I add some additional reasoning of my own.

Although the bracketed items in the first bullet-point in paragraph 70 of the NPPF are only examples of "community facilities", rather than a definitive list, I do not consider that agricultural land such as the Site, in absence of formal arrangements for some form of public access and/or use, should or could be regarded as "community facilities". Nor do I consider that in such absence it should be regarded as "shared space". Accordingly paragraph 70 of the NPPF had no bearing on anything the Inspector had to decide.

For the Site to fall within the requirements of paragraph 74 of the NPPF it had to be of "public value" (see the definition of "open space" in the glossary). The Inspector recognised the Site's value to the local community by reason of the memorial trees (see first sentence of paragraph 25 of the decision). But he had already recorded (and implicitly endorsed) the view of the Council's Arboricultural and Landscape Manager that the trees were not typical of the prevailing landscape character, that many were not especially long-lived, that they would require a notable degree of thinning, and that their "contribution to the quality of the landscape is not significant" (see paragraph 15 of the decision letter). Therefore any "public value" it had as an open space was dependent on the "community garden" aspect. In the absence of formal arrangements for some form of public access and/or use, it would have been most surprising if the Inspector had regarded the Site as an "open space of public value", a pre-requisite for the application of paragraph 74 of the NPPF. Further, so far as weighing any "adverse impacts" from the loss of the Site as a community garden, the absence of formal arrangements for access and/or use amply explain why the Inspector was entitled to give that matter only limited weight (final sentence of paragraph 25). His assessment on the facts as presented to him was entirely rational.

It is clear from the first sentence of paragraph 77 of the NPPF that some (though not most) open space may be appropriate for designation as Local Green Space. Therefore the concepts of "open space" and "green areas" do not appear to be totally distinct. In appropriate circumstances, for example where there were formal arrangements for public access or use, agricultural land would be capable of being "open space of public value" so as to fall within paragraph 74 of the NPPF. But that was not the situation here.

Accordingly, even had the Inspector been referred to section 8 of the NPPF, and in particular to paragraphs 70 and 74, I am satisfied that his decision would necessarily have been the same. But I agree with Mr Moules and Mr Bird, that the Inspector was not bound to cross-check the proposal against each and every paragraph of the NPPF, and that it is a sufficient answer to the claim under this ground that no-one had suggested that section 8 of the NPPF needed to be addressed. Paragraph 16 of the 2009 Regulations provides that:

In most cases (for there may be exceptions of which the present was not one) an inspector is entitled to decide such appeals by reference to such parts of the NPPF as have been identified in the parties' written representations. I so conclude despite the reference to "the policies in this Framework taken as a whole" in paragraph 14 of the NPPF (and in Policy SP1A) to which Miss Wigley referred me.

Accordingly the challenge on Issue (3) is not made out.

Disposal

It is readily understandable why the Claimant feels so strongly that the Site should not be developed for housing. Had the local planning authority submitted to the Inspector the new document containing its latest housing land supply figures, published on its website on 1 June 2015, and had these been tested, the outcome might (I do not say would) have been different. But I have given my reasons above as to why the challenge fails on Issue (1), and also why the challenges in relation to Issues (2) and (3) must also fail. Accordingly the claim is dismissed.

MR MOULES: My Lord, I am grateful. I am sure I can speak on behalf of all counsel in thanking your Lordship for the careful and speedy judgment that you have prepared and especially for the hard copy that was circulated this afternoon.

The Secretary of State has an application for costs. Your Lordship will have seen --

THE DEPUTY JUDGE: Just a second. I have got that but let me just get it out. Yes.

MR MOULES: Your Lordship has the schedule.

THE DEPUTY JUDGE: Is that the £13,455? Am I looking at the right one?

MR MOULES: That is the total in the schedule. There is the consent order in relation to cost capping that the parties had agreed, which is in the claim bundle, pages 30 and 31, and in that the Secretary of State agreed a £10,000 cap. In those circumstances, understandably --

THE DEPUTY JUDGE: So what you are claiming is the £10,000 under the cap?

MR MOULES: That is correct.

THE DEPUTY JUDGE: That is in fact all you can claim.

MR MOULES: We have just produced the schedule to show --

THE DEPUTY JUDGE: You have to get to that amount.

MR MOULES: Quite so.

THE DEPUTY JUDGE: But you have taken the necessary steps and so it is the £10,000. Miss Wigley?

MISS WIGLEY: My Lord, I can confirm that that is agreed, both the principle and the amount, the liability for costs and the £10,000.

THE DEPUTY JUDGE: Very well. So the first defendant is to have his costs, following summary assessment, capped in the sum of £10,000.

MR MOULES: I am grateful, my Lord, thank you.

THE DEPUTY JUDGE: Are there any other applications?

MISS WIGLEY: My Lord, yes. I do have an application for permission to appeal. My Lord, I bring that application on two main bases. First, that there would be a realistic prospect of success. Second, that this case raises matters of public importance suitable for consideration by the Court of Appeal. My Lord, in relation to Issue (1), your Lordship did not find that a lack of breach of the 2009 Regulations was a determining factor excluding this case from coming within the Connolly and Patel principles, and, in my submission, it is a matter of public importance as to where the line should be drawn as to what category of information is required to be provided and updated by the local planning authority in particular in a planning appeal.

With respect to your Lordship's judgment, I submit that there is a realistic possibility that the Court of Appeal would find your Lordship wrong to conclude that in the circumstances of this case the particular information, being the council's published assessment of five year housing land supply, fell on the wrong side of that line. I say this, my Lord, for three main reasons. Firstly, that information was of central importance to the determination of the appeal, it being a housing appeal. Secondly, the published position of the local planning authority as to its assessment of five year housing land supply was itself an objectively verifiable fact. Thirdly, whilst I accept that the content of that information went beyond simple matters of fact and included matters of judgment and opinion, I say those matters nevertheless should fall within the principle under Connolly and Patel. Firstly, because Connolly establishes that the opinion of the local planning authority is that it can be that type of information and particularly in a case such as this where the local planning authority is in a particular position being the public body charged under policy with the role of making the five year housing land supply assessment and monitoring the factual information and coming to a judgment.

For those reasons, my Lord, I submit that that information should be information that should be updated if it changes during the course of the Secretary of State's determination of a planning appeal and that there is a realistic possibility that the Court of Appeal would agree with me on that point.

My Lord, I also just raise a few points in relation to the other two issues. Under Issue (3), my Lord, in my submission, there is a realistic possibility that the Court of Appeal would agree with my submission that the lack of formal public access cannot as a matter of construction of the NPPF necessarily preclude open space from being open space of public value within the definition under the glossary and cannot preclude it from therefore being protected under paragraph 74 of the NPPF.

My Lord, also under Issue (3), as to the question of the circumstances under which the Secretary of State is required to consider the proposal against particular paragraphs of the NPPF, I rely on two matters. Firstly, I say that in the circumstances of this case the submissions presented to the Inspector from both the local planning authority and my client, the Claimant, were such as to squarely bring the issues within those provisions of the NPPF even though those paragraphs were not specifically mentioned. Secondly, my Lord, your Lordship refers to my submission relying on paragraph 14 of the NPPF as bringing in all other paragraphs, or most other paragraphs, of the NPPF, but I also rely on paragraph 7 of the NPPF, which the Inspector did specifically consider the proposal against, namely the passages concerning the social element of sustainability and the express links in that paragraph to chapter 8 on matters concerning healthy communities, that section of course including paragraph 74.

My Lord, lastly, on Issue (2), I note your Lordship's finding that there was an error of law, and, in my submission, there is realistic prospect that the Court of Appeal would disagree with your Lordship on whether or not there is a real possibility that had the Inspector followed the correct legal approach he would have come to a different conclusion. I say this for one particular point, my Lord, the policies central to Issue (2) were disregarded by the Inspector because of the lack of five year housing land supply, they therefore had a particular nexus to that issue and because the Inspector failed to consider at all the weight to be accorded to the breach of those policies he failed to consider that nexus and particularly the relatively marginal extent of undersupply which may have impacted on his decision as to the weight to be accorded with those conflicts and I say for that reason there is real possibility that the outcome may have been different.

My Lord, that concludes my application for permission.

THE DEPUTY JUDGE: Yes, Mr Moules?

MR MOULES: My Lord, to respond very briefly: on Issue (1) your Lordship has very carefully identified the ratio in the binding decisions of E and ex parte A and also the further Court of Appeal immigration cases to which my learned friend, Mr Bird, referred. They show the line is drawn carefully and narrowly, as your Lordship has identified in the judgment, by identifying whether the factual material was objective and uncontentious. It is not disputed by the Claimant that the contents of the housing land supply here was contentious and not objective. So it is quite clear, given those authorities, which side of the line this case falls. What my learned friend was really asking is for the line to be drawn in a different place, and the appropriate place to make that application would be the Court of Appeal itself. E has been followed by the Court of Appeal on at least two occasions and on both occasions the court has emphasised the narrowness of the principle. So, in my submission, it would be inappropriate to give permission in this court for a principle the Court of Appeal has itself twice approved.

On Issue (3), in relation to the definition of formal access, that strictly is obiter. Your Lordship found that (a) the Inspector did not have material before him raising paragraph 74 and (b) it was sufficient that paragraph 74 was not raised by the parties. So the definitional question does not get the claim home. I respectfully adopt what your Lordship says in the judgment: the fact that paragraph 74 was not mentioned in itself is a sufficient reason to dispose of ground 3.

In relation to Issue (2), there is, in my submission, no realistic prospect of the Court of Appeal reaching a different decision on the exercise of discretion. For the reasons your Lordship has given, the Inspector reached substantially the same planning judgment as the planning officer in recommending the grant of planning permission. It was fully in mind that the Site was only marginally outside the settlement boundary and all of the open settlement gap countryside policies were fully considered and given weight.

The other factor which distinguishes this case from Crane and all of the others is that this is not a case where it was a dichotomy between development plan versus NPPF paragraph 14. Policy SPZ1 actually incorporates the paragraph 14 presumption into the development plan and that is a further reason why, properly applying the development plan, there should be a presumption and the burden is then to show significant and demonstrable harm to outweigh it. So, actually, the Inspector could have gone further and specifically referred to SPZ1 and said well, actually, that is the development plan policy, that is in force, that is up to date and that is telling me to disapply the out-of-date settlement boundary policy. Had he done that, there would have been no error of law either. My Lord, on a redetermination of it SPZ1 may come further to the fore.

So, for those reasons, there is no realistic prospect that the Court of Appeal would reach a different decision on discretion and it is notable that the Saxmundham Inspector reached exactly the same conclusion, if you look at the sentence, if it would assist to take your Lordship to that reference.

THE DEPUTY JUDGE: I remember it.

MR MOULES: Essentially, with the additional sentence, he reaches the same view. Unless I can assist your Lordship further.

MR BIRD: My Lord, I gratefully adopt those submission, I have nothing to add.

THE DEPUTY JUDGE: Miss Wigley, do you want to come back on anything?

MISS WIGLEY: My Lord, only on very two small points. On the first issue, my Lord, in my submission, it is not clearly established by the Court of Appeal authority that the content of the relevant information has to be objective and verifiable fact, and that is illustrated by the Court of Appeal authority in Connolly where the relevant information was that local planning authorities' opinion as to the impacts, visual and amenity, impacts of the extension, those were not uncontentious views but they were, being the opinion of the local planning authority, considered highly material to the Secretary of State's determination even though the Secretary of State's Inspector carried out his own site visit in that particular case.

My Lord, just finally on Issue (2), the point about policy SPZ1, my Lord, that is one policy in the development plan, there are still the breaches of the other three policies which the Inspector was required to consider and was required to assess the relevant weight to be accorded to those policies and, as I have already said, the extent of five years supply or lack of it would have been highly material and would have needed to have been fed into his consideration of that.

THE DEPUTY JUDGE: I refuse leave to appeal. I am not satisfied that there is a realistic prospect of success on any of the three grounds. I have also considered whether there are issues of public importance which the Court of Appeal ought to be considering and I have concluded that there are not. In particular, in relation to ground 1, it seems to me that the test is very much fact sensitive rather than a dispute as to any relevant legal principle.

Therefore, I am afraid, Miss Wigley, any application you make will have to be made to the Court of Appeal. What I will do is that I will extend the time for your appeal starting until the date when the approved judgment is issued, so that you are not put in an embarrassing situation that you cannot submit to the court my document because I have told you not to but there is no other document.

MISS WIGLEY: My Lord, I am grateful for that. Just to be clear, that means I have 21 days from the date --

THE DEPUTY JUDGE: You will have whatever date it is in the rules, if you tell me it is 21 days, it probably is, but that will run from the date of the issue of the approved decision, the approved judgment.

MISS WIGLEY: I am grateful, my Lord.

THE DEPUTY JUDGE: I thank all the parties for the efficient way in which you have conducted the case, we got through quite a lot in significantly under the whole day, and for responding on time to my request for further information, albeit that I do not think any of you could quite get into the one side of A4 which I had required.