Verdin (t/a the Darnhall Estate) v The Secretary of State for Communities and Local Government & Ors

This claim is brought under section 288 of the Town and Country Planning Act 1990 (the 1990 Act) to quash the decision of the First Defendant on 7^th July 2016 dismissing his appeal against the refusal of planning permission by the Second Defendant for the residential development of land off Darnhall School Lane, Winsford (the Site).

The Claimant relies on the following grounds:

The site comprised an area of open fields of about 6.5 hectares on the edge of Winsford. The application dated 12 July 2013 was in outline with all matters reserved and proposed residential development for upto 184 dwellings.

The application was refused by the Second Defendant on 26 November 2013 on grounds of prematurity to the published WNP which was proposed for examination. The Claimant appealed and the decision was recovered by the First Defendant for his determination on 25^th February 2014.

On 21^st March 2014 the Second Defendant wrote to the First Defendant that it would not be supporting the ground of refusal at the proposed inquiry. The inquiry was held on 10^th and 11^th June 2014. On 11^th August 2014 the inspector reported to the First Defendant recommending that the appeal be allowed subject to conditions.

By letter dated 14^th April 2015 the First Defendant decided to reopen the inquiry before the same inspector, as he had received representations that material considerations had changed, indicating that he wished to be informed on the extent to which the proposed development complied with the development plan and whether proposed development would amount to sustainable development including whether there was a five year supply of deliverable housing sites. The WNP had been made in November 2014 and the CWACLP had been adopted in January 2015.

For the purposes of the reopened inquiry the Claimant revised his proposals for the development:

The reopened inquiry was held on 15-18 September 2015.

The decision of the First Defendant was dated 7 July 2016. It attached the original report of the inspector (the OR) and his supplementary report (the SR) following the reopened inquiry, in both of which he had recommended allowing the appeal subject to conditions.

At paragraph 247 of the SR the inspector concluded that a five year supply of housing could be demonstrated and that the development plan’s policies for the supply of housing were up to date.

In considering sustainable development from paragraph 248 of the SR the inspector concluded that the development would conflict with policy STRAT9 of the CWACLP, being outside the settlement limits of Winsford established under the former local plan (the VRBLP) policy GS5. He further concluded at paragraph 256 in respect of the WNP:

“Although policy H1 should not be seen as a cap on housing development, the effect of policy H1 in particular is to make provision for housing to a level close to the minimum requirements of policy STRAT6 of the CWACLP and to guide the location of development in accordance with the vision of the WNP … Additional sites could come forward that are not allocated or are on PDL, but they would need to fit with the WNP vision to comply with the plan.”

At paragraph 259 he concluded that the proposed development “cannot be said to comply with the WNP overall”.

At paragraph 260 he concluded on the development plan:

“There would be compliance with a number of relevant policies in the development plan … These include those used to assess the proposal against specific matters such as transport (STRAT10), affordable housing (SOC1), housing mix (SOC3), and environment (ENV2, ENV4 and ENV6). But there would be conflict with Policy GS5 of the VRBLP, Policy STRAT9 of the CWACLP and to a lesser extent Policy STRAT1 of the CWACLP. Policy GS5 still has considerable weight in the context of Winsford. There would also be conflict with Policy H1 of the WNP. The housing supply policies GS5, STRAT9 and H1 are the dominant polices for assessing proposals for development outside the Winsford settlement boundary. I conclude that the proposal would be contrary to the development plan overall.”

On the economic role he concluded:

“(261)

The economic benefits set out in OR147 still apply. In addition the housing offer, whereby up to 92 new homes would be built by local SMEs, supports the Government’s objective of boosting that sector of the economy. The self-build plots and elements of local training, employment and procurement would also add value to the local economy.

(262)

The weight to be given to the benefit of the additional market housing needs to be seen in the context of the Council’s response to the need to boost significantly the supply of housing. That is what has been achieved by providing a 5 year supply of housing land. That said, the fact that the market housing will be delivered by SMEs takes up the weight a notch. This along with the other elements of the housing offer means that the economic benefits of the appeal proposal are likely to be able to be distinguished from many other housing proposals in the Borough or indeed other proposals on non-allocated sites on the edge of Winsford.

…

(264)

Overall there are significant economic benefits from the proposal.”

On the social role he concluded at paragraph 269 that substantial weight should be given to the provision of affordable housing on the site. He continued at paragraph 270:

“(270)

The self-build element would carry some social benefits in helping to respond to the needs of a particular group identified by the SHMA and the Government who wish to build their own homes. The proposals do not follow the approach advocated by Policy SOC3 of the CWACLP as a Community Land Trust is not involved. Therefore there are questions over the affordability of the plots (SR 183). That said, the scheme for self-build would allow an input by the Council into the open market value of the plots and the PPG does not refer specifically to affordability in discussing this element of demand.”

The inspector referred in this part of his conclusions to the Second Defendant’s case reported at paragraph 183, which stated:

“(183)

Each of these matters is a benefit which can point to national policy support. However, the self-build element still has serious issues attached to it. Policy SOC3 of the CWACLP refers to working with organisations such as Community Land Trusts to help bring forward schemes for self-build groups and individuals. The supporting text to the policy explains that that is because such bodies can acquire land cheaply. The mechanism for provision of the self-build units would appear to do nothing for the affordability of that as a method of construction (a separate issue from the affordability of the dwelling in perpetuity). That is because the land for the self-build units would include the necessary services and then be sold at market value. There is no evidence to show that take up of self build land at market value would be at all likely. The only evidence of demand for self-build is the reference to the SHMA survey which records people’s interest in self building as, it appears, a matter of principle without a real consideration of costs. There would, on the conditions offered, be no mechanism to prevent self-build plots lying undeveloped whilst the rest of the development went ahead.”

The inspector then continued in his conclusions on the social role:

“(271)

The local training, employment and procurement elements would bring some social benefits to the Borough as a whole and Winsford on particular where there are relatively high levels of deprivation and joblessness including in the ward adjacent to the appeal site. There would be spin off benefits for the town centre, local shops and other services in the settlement from the greater trade. These spin-offs bring social as well as economic benefits.

…

(273)

Overall there are very substantial social benefits from the proposal.”

At paragraph 275 he concluded on the environmental role that there would be “some moderate harm to the environmental dimension of sustainable development”.

He set out his overall conclusion on sustainability at paragraph 276:

“The Framework requires that the economic, social and environmental roles of sustainable development should not be assessed in isolation. In this instance the significant economic benefits and the very substantial social benefits of the development clearly outweigh the moderate environmental harm. However, that is not an end of the matter. The conflict with the up-to-date development plan is a key component of the final balancing exercise which I deal with in my final conclusions. In this respect Policy STRAT 1 of the CWACLP indicates that sustainable development would not be achieved if a proposal would fundamentally conflict with the Local Plan.”

On conditions he continued at paragraph 278:

“(278)

There is a need to update the recommended conditions to give effect to the housing offer. The provision of affordable housing above the policy target and the facilitating of self-build are all significant benefits which I have taken into account in the planning balance. Therefore, conditions are necessary to ensure those elements would be implemented should the development go ahead … I have amended the self-build condition so that the scheme for the provision of such units includes reference to the period that houses would need to be occupied by those who carried out the project.

(279)

The support for the local economy and SMEs that would be secured by requiring small and medium sized Cheshire-based builders to be involved in the open market housing and a percentage of procurement undertaken locally are needed to ensure that the economic benefits of the scheme would be realised. I have amended the local procurement condition to refer to businesses based in the Borough. The revisions to the local labour strategy condition are warranted to provide more precision.”

He then set out his planning balance and overall conclusions, including:

“(282)

The proposal is contrary to Policy STRAT1 of the CWACLP and Policy GS5 of the VRBLP which is still a ‘saved’ policy post adoption of the CWACLP, albeit not carrying full weight. There is also a degree of conflict with STRAT 9 of the CWACLP and policy H1 of the WNP. Although a number of development plan policies support the proposal, particularly SOC1 of the CWACLP, and the relevant policies of the WNP are not explicit in forming a basis to resist the development, there is conflict with the development plan overall. The development plan is not to be lightly set aside. A failure to comply with the development plan could give an indication that the development would not be sustainable overall.

(283)

Permission would undermine the credibility of the plan-led system and the status of neighbourhood plans promoted by the Framework even though paragraph 198 of the Framework should not be interpreted as giving NPs enhanced status over other components of the development plan. There are adverse impacts through the loss of open countryside which represents moderate harm. The Council has not alleged any other harm given that the other material impacts could be made acceptable by the use of conditions.

(284)

I have concluded that there is now a 5 year supply of housing which is a significant change in circumstances since the original report. As a result the second sentence of paragraph 49 of the Framework does not take effect and relevant policies for the supply of housing can be considered up-to-date. Given that policies STRAT1, STRAT2, STRAT6 and STRAT9 of the CWACLP have recently been found sound and have only just been adopted it is unsurprising that they should be considered up to date. Similar status can be afforded to policies H1 and H2 of the WNP.

(285)

The test within paragraph 14 of the Framework … does not now come into play. It is a matter of balancing the harm, conflict with the development plan and the adverse impacts through the loss of countryside against the economic and social benefits arising from the provision of new homes. In this case there are substantial economic and social benefits arising, particularly the significant proportion of affordable homes and the other ‘novel’ elements of the housing offer. Whilst this type of offer could be repeated, the circumstances are unlikely to be commonplace because the position of the appellant as landowner as set out in detail in the ‘Local Approach’ document.

(286)

Development that conflicts with the development plan should be refused unless other material considerations indicate otherwise. But it does not necessarily follow that a proposal which conflicts with the development plan cannot comprise sustainable development as illustrated by many appeal decisions. I conclude that the conflict with the development plan, the starting point for decision making, and the adverse impacts on the countryside are outweighed by other material considerations, namely the significant economic and very substantial social benefits arising from additional housing, particularly from the affordable homes.

(287)

In arriving at this conclusion I have taken into account that the Council, putting to one side the conflict with the development plan and the ‘in principle’ objection to the loss of countryside, agree that the grant of permission will not result in any specific adverse impacts and that the site is in a sustainable and accessible location. For these reasons in terms of the second main consideration, the proposal would accord with the presumption in favour of sustainable development, having regard to the development plan and the economic, social and environmental dimensions of sustainable development considered in the round.”

In the decision letter the First Defendant dealt with procedural matters, including at paragraph 6 the revised housing offer which the claimant had put forward subject to the proposed conditions, and stated that he had taken the revised offer into account.

At paragraph 10 he set out the approach under section 38(6) of the Planning and Compulsory Purchase Act 2004 (the 2004 Act) and recorded that the development plan consisted of the CWACLP, the WNP and the saved policies of the VRBLP.

In paragraph 14 he expressed his agreement with the inspector that overall the proposal would be contrary to the development plan for the reasons given by the inspector in the SR. At paragraph 15 he agreed with the inspector that there is a five year supply of housing land and therefore that the development plan’s policies for the supply of housing were upto date, again for the reasons given by the inspector in the SR.

In respect of ‘sustainable development – economic role’ at paragraph 16 the First Defendant explained that he had considered the proposed conditions supporting the revised housing offer against the advice in paragraph 203 of the National Planning Policy Framework (the Framework) and the Planning Practice Guidance (the Guidance). He continued:

“(17)

In the Secretary of State’s judgement, the condition entitled ‘Training and Employment’ would not be necessary to make the application acceptable in planning terms. Though the requirements could be defined further in the Training and Management Plan, he considers that this condition as drafted is not sufficiently precise and would be difficult to enforce, partly because it would be difficult to detect a breach.

(18)

In the Secretary of State’s judgement, the condition entitled ‘Self Build Housing’ is not necessary to make the scheme acceptable in planning terms. Moreover, though it does support SOC 3 of the CWACLP, there are still concerns raised by the Council (SR183) as to the effect on affordability which leads the Secretary of State to find that this condition is not reasonable in all other respects.

(19)

In the Secretary of State’s judgement, the condition entitled ‘Local Builders’ would not be necessary to make the development acceptable in planning terms and would not be strictly relevant to planning policy. Dependent on the builders or companies available through the build out of the development the condition would be difficult to enforce, neither would it be precise, or reasonable in all other respects, so cannot be imposed.

(20)

In the Secretary of State’s judgement, the condition entitled ‘Local procurement’ would not be necessary to make the application acceptable in planning terms. Neither is it strictly related to planning. The condition wold be difficult to enforce, in part because it could prove difficult to detect a breach. The Secretary of State also considers that it is unclear what the position is in relation to the availability of businesses within the specified area to meet the criteria and therefore whether this condition would be reasonable in all other respects.

(21)

For the reasons given in paragraphs 16-20 above the Secretary of State finds these conditions would not satisfy all the relevant policy tests in paragraph 203 of the Framework and the Guidance and therefore should not be attached to any planning permission. This reduces the economic benefits of the development identified by the inspector in his SR. Consequently the Secretary of State does not agree with the inspector that the appellant’s revision to the housing offer , whereby up to 92 new homes would be built by small and medium sized local house builders ‘takes up the weight a notch’. Nor does the Secretary of State agree with the inspector that the economic benefits of the appeal proposal are likely to be able to be distinguished from many other housing proposals in the Borough including other proposals on non-allocated sites on the edge of Winsford. Rather the Secretary of State considers that the situation effectively reverts to the position at the time of the original inquiry as set out in the OR where the inspector concluded that the proposal would result in a number of economic benefits including the New Homes Bonus Scheme, construction jobs, additional local spend and employment arising from the additional expenditure.

(22)

… Overall the Secretary of State notes that the inspector finds significant economic benefits. However for the reasons given above he considers that the economic benefits are less significant than the inspector concludes and they attract just about moderate weight in the planning balance.”

In respect of the social role of sustainable development the Secretary of State concluded:

“(23)

The Secretary of State agrees with the inspector that for the reasons given at SR 265-269 substantial weight should be given to the provision of affordable housing on the site. The inspector apportions weight to the social benefits outlined at SR270-271. However for the reasons given above the Secretary of State finds that the conditions that would incorporate the provisions for training and employment, self-build housing, local builders or local procurement should not be attached to a planning permission. This reduces the social benefits of the redevelopment identified by the inspector in the SR. However the Secretary of State agrees that the other social dimensions of the proposal set out at OR 150-152 have not materially changed. Overall the Secretary of State considers that the social benefits fall short of ‘very substantial’, as the inspector suggests at SR273, but nevertheless attract substantial weight in the planning balance.”

At paragraph 24 the Secretary of State agreed with the Inspector in respect of the environmental role of sustainable development that overall there would be some moderate harm to the environmental dimension of sustainable development due to the loss of open fields.

He set out his conclusions on sustainability as follows:

“(25)

The Secretary of State has carefully considered the inspector’s conclusions on the three dimensions of sustainable development set out at paragraph 7 of the Framework. As outlined above, the Secretary of State has found that there are social and economic benefits of the proposal but also environmental harm. He has weighed these factors in the overall planning balance below. He agrees with the inspector that the conflict with the up to date development plan is also a key component of the final balancing exercise.”

He dealt with conditions generally at paragraph 27, including that:

“With the exception of the affordable housing condition, for the reasons at paragraphs 16-20 above he does not consider that the other conditions at SR Appendix C should attract any weight in the planning balance.”

He then set out his planning balance and overall conclusions as follows:

“(28)

Section 38(6) of the (2004Act) requires that proposals be determined in accordance with the development plan unless material considerations indicate otherwise. For the reasons signposted by paragraph 14 above the Secretary of State finds that the proposal conflicts with the development plan overall. He has therefore gone on to consider whether there are any material considerations sufficient to outweigh the conflict with the development plan.

(29)

As discussed in consideration of the development plan at paragraph 14 above, and in line with the inspector the Secretary of State finds conflict with the WNP. Paragraph 198 of the Framework states that where a planning application conflicts with a made neighbourhood plan, planning permission should not normally be granted and conflict with WNP policy H1 means that the proposal cannot be said to comply with the neighbourhood plan overall.

(30)

The Secretary of State gives substantial weight to the social benefits of the scheme, including the affordable housing, and moderate weight to the economic benefits. However he does not consider that the benefits outweigh the clear conflict with the up to date development plan and the moderate harm to the environmental dimension of sustainable development from the adverse impact of the loss of open fields.”

He accordingly dismissed the appeal and refused planning permission.

The power of the Court to quash a decision of the First Defendant under section 288 of the 1990 Act arises where it is shown that the decision was unlawful or that the Claimant has been substantially prejudiced by the failure to comply with any of the relevant procedural requirements. That includes the giving of reasons for the decision.

By section 70(2) of the 1990 Act an application for planning permission must be determined with regard to the development plan so far as material and to any other material considerations including those specified under that section. By section 38(6) of the 2004 Act the application should be determined in accordance with the development plan unless material considerations indicate otherwise. Under sections 70(1)(a) and 72 of the 1990 Act planning permission can be granted subject to conditions.

The principles that apply to a statutory challenge under section 288 are well established and are conveniently summarised by Lindblom J (as he then was) in Bloor Homes East Midlands Ltd v SSCLG 2014 EWHC 754 (Admin) at paragraph 19 as follows:

“(19)

The relevant law is not controversial. It comprises seven familiar principles:

i.

Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to “rehearse every argument relating to each matter in every paragraph” (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment [1981] 42 P. & C.R. 26, at p.28).

ii.

The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the “principal important controversial issues”. An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 W.L.R. 1953 , at p.1964 B-G).

iii.

The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, “provided that it does not lapse into Wednesbury irrationality” to give material considerations “whatever weight [it] thinks fit or no weight at all” (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 W.L.R. 759, at p.780 F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for [2001] EWHC Admin 74 , at paragraph 6).

iv.

Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council [2012] P.T.S.R. 983 , at paragraphs 17 to 22).

v.

When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann L.J., as he then was, South Somerset District Council v The Secretary of State for the Environment [1993] 66 P. & C.R. 80, at p.83 E-H).

vi.

Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB), at paragraph 58).

vii.

Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill L.J. Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government [2013] 1 P. & C.R. 6, at paragraphs 12 to 14, citing the judgment of Mann L.J. in North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P. & C.R. 137, at p.145).

In South Bucks District Council and another v Porter (No 2) [2004] 1 W.L.R. 1953 (referred to above) Lord Brown summarised the content of the duty on inspectors at paragraph 36:

“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

In Wind Prospect Developments Limited v Secretary of State for Communities and Local Government [2014] EWHC 4041 (Admin) and Keith Langmead Ltd v Secretary of State for Communities and Local Government [2017] EWHC 788 (Admin) Lang J emphasised that there was no need for the Secretary of State to rebut each conclusion of an inspector, with whose recommendation or conclusions he does not agree, to discharge the duty to give reasons in accordance with the approach in Save Britain's Heritage v Secretary of State for the Environment [1991] 1 W.L.R. 153 and South Bucks DC v Porter no 2 (supra).

On the principle of consistency in North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P. & C.R. 137 Mann LJ said:

“In this case the asserted material consideration is a previous appeal decision. It was not disputed in argument that a previous appeal decision is capable of being a material consideration. The proposition is in my judgment indisputable. One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.

To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case. The areas for possible agreement or disagreement cannot be defined but they would include interpretation of policies, aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weigh the previous decision and give his reasons for departure from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate.”

In Fox Strategic Land & Property Ltd v Secretary of State CLG [2012] EWHC 444 (Admin) HHJ Gilbart (as he then was) was concerned with decisions made on two different sites in the same vicinity within a short time of each other. He stated at paragraph 37:

“(37)

Mr Warren submitted that a decision maker was entitled to regard another decision as material, but then give it no weight. In my judgement that is to misunderstand the purpose of the passages in North Wiltshire cited above. The rationale of the principle is that, if a decision is to be reached which is not ad idem with the approach followed in another, then the importance of achieving consistency and of the maintenance of confidence in the development control system require that reasons are given for departures from conclusions reached in another decision. I would refer to this passage from Dunster at paragraph 23 per Lloyd LJ: (My italics)

“Mr Mead's last sentence in paragraph 8 suggests that he has not grasped the intellectual nettle of the disagreement, which is what is needed if he is to have had proper regard to the previous decision. Either he did not have a proper regard to it, in which case he has failed to fulfil the duty to do so, or he has done so but has not explained his reasons, in which case he has not discharged the obligation to give his reasons.” ”

The decision was quashed.

On appeal Pill LJ stated at paragraph 20:

“(20)

I note that the two decisions were taken within a short time of each other; they were both signed by the same official acting for the Secretary of State. Mr Warren submits that the stark difference present in Gallagher was not present in the situation under consideration. The situation was a complex one and, on the facts, the Secretary of State was entitled to ignore it. It appears to me that, even on that approach, an explanation along the lines of the submissions made by Mr Warren in this appeal should have been given.”

The appeal was dismissed.

In Broadview Energy Developments Ltd v The Secretary of State for Communities and Local Government [2016] EWCA Civ 562 the Court was concerned with the lobbying of the minister by a MP. Longmore LJ explained the principles as follows:

“(25)

There was in this case no breach of the Rules. Mr Hopkins did not differ from the inspector on any question of fact material to the inspector’s conclusion nor did he take into account any new evidence or new matter of fact. The obligation imposed by r.17(5) to notify any such difference or new evidence and permit fresh representations did not therefore arise. To the extent that para.4 of the Planning Propriety Guidance reflects, the requirement of r.17(5), it was not contravened either. Paragraph 4 does, however, also say that privately made representations should not be entertained unless other parties have been given the chance to consider them and comment on them. This is a fundamental principle of the common law which requires a decision-maker to listen to and take into account both sides of an argument, encapsulated in the Latin phrase "audi alteram partem". One famous example is Errington v Minister of Health [1935] 1 K.B. 249 in which a slum clearance order was confirmed by the Minister after he had privately consulted the officials of the relevant Town Council about its perceived need to demolish the buildings rather than reach an agreement with the owner of the property about repairing them. The explanation given by the officials was that the buildings had defective foundations and were thus effectively unrepairable. This explanation satisfied the Minister but the owner never had any opportunity to make any representation about the officials’ explanation and the order was therefore quashed.

(26)

To a 21st century public lawyer this is a stark and obvious application of the principle that a decision-maker must not entertain representations from one party without finding out what other parties  have to say on the matter. Nevertheless, the principle has to be applied sensibly. If a party to an inquiry or an objector seeks to bombard a minister with post-inquiry representations which are merely repetitive of the representations made at the inquiry itself and every time that happened the Minister was obliged to circulate the representations for comment, the decision-making process could easily be subverted. That is effectively what has happened in this case so far as the written correspondence and representations are concerned. In these circumstances, the Minister has not "entertained" privately made representations; he has merely made his decision in the light of all the evidence given and representations made to the inspector which were known to all parties. Although it could be said that there was a technical breach of para.4 of the Guidance, there was no breach of the rules of natural justice, see Fox Land v Secretary of State for Communities and Local Government [2014] EWHC 15 (Admin) at [22]–[25] per Blake J. No doubt that is the reason why Mr Pike concentrated on the fact that Mrs Leadsom had the advantage of face-to-face meetings with Mr Hopkins in the House of Commons tea room and the lobby. It is those occasions which are said to be unfair since Broadview had no comparable advantage.”

On the facts of the case the appeal was dismissed and the Secretary of State’s decision was upheld.

The Framework provides national planning policy, including:

“(7)

There are three dimensions to sustainable development: economic, social and environmental. These dimensions give rise to the need for the planning system to perform a number of roles:

i)

an economic role – contributing to building a strong, responsive and competitive economy, by ensuring that sufficient land of the right type is available in the right places and at the right time to support growth and innovation; and by identifying and coordinating development requirements, including the provision of infrastructure

ii)

a social role – supporting strong, vibrant and healthy communities, by providing the supply of housing required to meet the needs of present and future generations; and by creating a high quality built environment, with accessible local services that reflect the community’s needs and support its health, social and cultural well-being

iii)

an environmental role – contributing to protecting and enhancing our natural, built and historic environment; and, as part of this, helping to improve biodiversity, use natural resources prudently, minimise waste and pollution, and mitigate and adapt to climate change including moving to a low carbon economy.

…

(14)

At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking.

…

For decision-taking this means:

i)

approving development proposals that accord with the development plan without delay (footnote 10 adds ‘unless material considerations indicate otherwise) and

ii)

where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:

iii)

any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole or

iv)

specific policies in this Framework indicate development should be restricted.”

In respect of decision making where a neighbourhood plan is involved, the Framework provides:

“(198)

… Where a planning application conflicts with a neighbourhood plan that has been brought into force, planning permission should not normally be granted.”

In respect of the imposition of planning conditions the Framework provides:

“(203)

Local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of conditions or planning obligations. Planning obligations should only be used where it is not possible to address unacceptable impacts through a planning condition.

…

(206)

Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects.”

The Guidance also provides advice on the use of planning conditions. It sets out paragraph 206 of the Framework and explains that it will refer to the six requirements in that paragraph as the six tests. The Guidance continues:

“How does the Local Planning Authority ensure that the 6 tests in paragraph 206 of the National Planning Policy Framework have been met? Whether it is appropriate for the Local Planning Authority to impose a condition on a grant of planning permission will depend on the specifics of the case. Conditions should help to deliver development plan policy and accord with the requirements of the National Planning Policy Framework, including satisfying the 6 tests for conditions. The 6 tests must all be satisfied each time a decision to grant planning permission subject to conditions is made. The tests are set out in the following table, alongside key considerations: …”

That includes:

The Guidance then continues:

“Are there any circumstances where planning conditions should not be used? Any proposed condition that fails to meet any of the 6 tests should not be used. This applies even if the applicant suggests it or agrees on its terms or it is suggested by the members of a planning committee or a third party. Every condition must always be justified by the local planning authority on its own planning merits on a case by case basis.”

The Guidance also sets out circumstances where conditions should not be used, including:

“Conditions which unreasonably impact on the deliverability of a development: Conditions which place unjustifiable and disproportionate financial burdens on an applicant will fail the test of reasonableness. In considering issues around viability, local planning authorities should consider policies in the National Planning Policy Framework and supporting guidance on viability.”

Having set out the above by way of general background and context, I will now consider the grounds of the application in turn.

The proposed condition provided that:

“Prior to the commencement of development, a scheme for the provision of self-build plots shall be submitted to, and approved in writing by the local planning authority. The self-build plots shall be 10% of the total number of the dwellings to be provided on the site and shall be provided in accordance with the approved scheme. The scheme shall specify:

i)

The number, location and size of the plots that would be reserved for self-build;

ii)

That the dwelling that is built is first occupied by the person or family that purchases the plot;

iii)

The period that the person or family that purchases the plot shall remain in occupation;

iv)

The roads and services shall be provided to service each self-build plot and the phasing thereof; and

v)

A programme for the marketing of the self-build plots specifying the open market values at which they will be offered.

All parts of the approved scheme for the provision of the self-build plots shall be implemented in full.”

It is common ground that in applying the tests in the Framework and the Guidance it is necessary for the condition to meet all of the tests. Accordingly, if the First Defendant can establish that one at least of the tests was not met in respect of any particular condition as a matter of policy it would not be appropriate to include that condition in any permission, even if the other reasons for discounting that condition were not able to be supported on the reasons given.

It is also common ground that each condition must be considered separately. It has not been contended in this court on behalf of the First Defendant that, if the First Defendant is found to have acted unlawfully in rejecting any of the conditions, this court should exercise its discretion not to quash the decision on the basis that the overall decision would in any event have been the same.

In respect of the reasons in paragraph 18 of the decision letter, which I have set out above, Mr Young, who appears for the Claimant, submits that there is no reasoning to support the statement that the condition was not necessary to make the scheme acceptable in planning terms. He submits that it was plainly required to ensure that self-build plots were included and that was a planning objective which accorded with national and local plan policy. It provided no basis for the First Defendant to attach no weight to the proposed condition, as he does in paragraph 27 of the decision letter. It should have been a matter to be addressed as part of the planning balance.

As to the second reason that the concerns raised by the Second Defendant as summarised by the inspector in paragraph 183 of the SR led the First Defendant to find that the condition was not reasonable in all respects, he submits that the First Defendant has wholly failed to have regard to the conclusions of the inspector in this respect and in particular to the proposed wording of the condition. The condition required the inclusion in the scheme of a programme for marketing including the open market values at which the plots would be offered. Given the acknowledged demand for the plots and the fact that the value sought will necessarily reflect what the market can in fact afford to pay for the plots, there was no rational basis for the First Defendant’s conclusion that the condition would be unreasonable. In any event the First Defendant has not provided any adequate reasons to explain how he addressed this part of the inspector’s conclusions and the actual terms of the condition so that the Claimant is prejudiced in not knowing whether the decision was in fact taken lawfully in this respect.

Mr Whale, who appears for the First Defendant, did not contend that as part of his reasoning in the first sentence the First Defendant had concluded that the condition would not be necessary to deliver this particular aspect of the revised housing offer or that the provision of self-build units was not a planning objective supported in policy. However, for the first time on the second day of the hearing in this court he sought to explain that part of the reasons as meaning that the First Defendant had concluded that, even if the condition met the tests and could be imposed, it still would not have made the development acceptable so that the decision would have been the same. Mr Whale accepted that that was not the natural meaning of the words used but submitted that in context it was the correct understanding of the statement that the condition was “not necessary to make the scheme acceptable in planning terms”, echoing the advice in the Guidance on necessity i.e. it was not needed to make the development acceptable.

In his reply that was resisted by Mr Young who submits first that it is contrary to both the language used and the overall structure of the decision letter. In context it was an artificial and contrived approach to the words used. Moreover as a matter of considerable materiality it should in any event have been part of the planning balance, which it was not. It was a misunderstanding of the advice in the Guidance that a condition could not be imposed unless there was a definite planning reason. In this case for the reasons set out above there clearly was a planning reason, as has been conceded on behalf of the First Defendant. He also noted that the meaning on which the First Defendant now relies had not been suggested in the summary or detailed grounds of resistance and was plainly an afterthought, which further demonstrates that it is not the natural and proper understanding of what the First Defendant actually said in his decision letter.

In respect of the second part of the paragraph Mr Whale accepted the relevance of the promotion of self build housing plots as part of national and local policy. However he submits that in this case it is clear from the reasons given that the First Defendant was accepting the concerns raised by the Second Defendant as summarised by the inspector at SR 183, to which he expressly refers. The absence of any evidence to demonstrate that the plots would be taken up if only available at market value and the concern that they would be left undeveloped went specifically to whether this condition was reasonable or would be effective in securing the claimed benefit, whether developed by the Claimant or a third party.

Moreover it is clear from paragraph 270 of the SR that the inspector accepted that the concerns raised by the Second Defendant were real. The inspector’s response to the concern was that under the condition the scheme was to include a programme for marketing of the self-build plots specifying the open market values at which they would be offered for sale so that the Second Defendant would have ‘an input into the open market value of the plots’. He also noted that the Guidance does not refer specifically to affordability in discussing that element of demand. Mr Whale submits that it is clear that the First Defendant did not agree with the inspector that these factors were in the circumstances sufficient to meet the concerns raised by the Second Defendant, as a result of which he found that the condition would not be reasonable in all other respects, thus failing that test in the Framework and the Guidance. This was quintessentially a matter of planning judgement for the First Defendant. It was sufficient by way of reasoning.

As is usual, the validity and appropriateness of the proposed conditions were the subject of consideration at the inquiry. There is no dispute that the relevant approach was set out in the Framework and the Guidance. That was the approach taken at the original inquiry (see OR paras 122-126 and 164-166), as it was at the reopened inquiry (see paras 204-208 and 278-281). The First Defendant was therefore entitled and indeed obliged to consider as a material consideration whether the proposed conditions accorded with the relevant policies and guidance to be attached to a planning permission. As a matter of general approach this can be seen to have been his approach as set out in paragraph 27 of the decision letter, where he accepted the inspector’s conclusions on all of the conditions including the revised affordable housing condition with the exception of the four conditions which he considered in paragraphs 16 – 20 of the letter. Thus as a matter of overall approach there can be no real doubt here that the First Defendant had regard to all of the proposed conditions and to the relevant conclusions of the inspector and that he had regard to the relevant policies and advice in the Framework and the Guidance.

The question is therefore whether the conclusions to which he came in rejecting the four conditions, including the self-build condition, were rationally open to him on the evidence and other considerations before him and whether the reasons he gave were adequate on the principles in South Bucks.

In my judgement, applying a straightforward and contextual approach to the first sentence in paragraph 18 of the decision letter, it is impossible to adopt the construction which Mr Whale submits should be inferred as the effect of what was said. As part of the overall structure of the decision letter, the effect of the conditions in the overall balance was addressed in paragraph 27, where he concluded that “he does not consider that [the remaining conditions] overcome his reasons for dismissing the appeal”. That direct language is straightforward and reinforces the conclusion that that was not what was intended in the statement that the condition was not necessary to make the scheme acceptable in planning terms, which is repeated in each of paragraphs 17-20 of the decision letter where he is considering the economic role of sustainable development.

At best it seems to me that the First Defendant was stating that the subject of the condition was not necessary to make the scheme itself acceptable in planning terms because it did not address a matter which would support any relevant benefit as part of the scheme. Mr Whale did not seek to support such a conclusion in this court and in my judgement he was right not to do so.

As to the second part of the paragraph, the reasons make clear that the First Defendant was relying on the concerns raised by the Second Defendant at the inquiry as summarised in paragraph 183 of the SR. That had been responded to by the Claimant at the inquiry, as summarised by the inspector at paragraph 80. In the light of those passages in the report it is plain that the effect on affordability was in respect of the implications for the take up of the plots and the concern that the plots would remain undeveloped. If the consequence of the condition would or could have that effect, it would be a matter of planning judgement whether that effect was one that was reasonable, having regard to the Guidance in placing an unjustifiable or disproportionate burden on the applicant. It is accepted that the fact that the Claimant may have proposed and accepted the condition cannot be conclusive, not least because the permission attaches to the land.

In my judgement it is also plain from paragraph 18 that the First Defendant was agreeing with the inspector’s conclusion in paragraph 270 of the SR that there were questions over the affordability of the plots for the reasons given by the Second Defendant but rejected his conclusion that the condition met the policy and guidance requirements because of the inclusion of the specification of the open market values at which the plots would be offered under the approved scheme. I do not consider that there is any basis for concluding that the First Defendant must have ignored or overlooked that part of the condition, bearing in mind that it was specifically referred to by the Claimant and by the inspector and in any event the full terms of the proposed condition formed an appendix to the SR, to which the First Defendant refers. It does not seem to me that the rejection by the First Defendant of that provision as an adequate safeguard was perverse, given the concerns over affordability and the fact that there was no evidence as to what the open market values would be. The Second Defendant’s role would be one of approving the relevant scheme, including what was demonstrated to be the open market value. But that was the concern to which the Second Defendant pointed in paragraph 183, that the fact that the plots would be sold at market value and the effect on whether there would be take up of these plots. In my judgement therefore the First Defendant was entitled to reach the conclusion that the proposed condition failed the test of reasonableness. Moreover, in the circumstances I conclude that the reasons given were sufficient in setting out the reasons for his decision. It was not incumbent on the First Defendant to set out a point specific rebuttal of the inspector’s reasons for accepting the condition in the SR.

Overall, accordingly, although I do not consider that the first sentence of the paragraph provided any intelligible or relevant support for the rejection of the condition, the conclusions set out in the second sentence were open to the First Defendant and that was sufficient to support the conclusion that the condition should not be attached to any permission and that no weight should accordingly be given to it. For these reasons this ground fails.

The proposed condition provided:

“The development hereby permitted shall not commence until details of a Training and Employment Management Plan has been submitted to and approved in writing by the local planning authority. The plan shall aim to promote training and employment opportunities during the construction phase for local people by undertaking to meet a target of not less than 50% of the total workforce on the site being resident in Cheshire West and Chester, Chester East or Warrington Borough Council areas, of which not less than 20% is either

i)

Resident in the Borough of Cheshire West and Chester; or

ii)

Resident within a 15 mile radius of the site.

The development shall be carried out in accordance with the approved plan.”

The Claimant had put forward a similar condition for training and employment at the original inquiry but not including the requirement for specific percentages of the workforce to be resident in the named areas. At paragraph 126 of the OR the inspector noted that similar conditions had been imposed elsewhere at appeal and had been held to have met the tests. At paragraph 165 of the OR he had concluded that

“The condition relating to training and development would contribute to reducing exclusion and achieving sustainable development.”

The submissions in respect of the first sentence of paragraph 17 of the decision letter in which the First Defendant considered this proposed condition were effectively the same as those made in respect of ground 1 above.

In respect of the second sentence Mr Young submitted that the assertion that the condition as drafted was not sufficiently precise was irrational and lacked any support on the wording of the condition or otherwise. The condition required the management plan to be approved, which, as the First Defendant conceded, would enable further definition of the requirements as part of the proposed plan. There was no inconsistency in the plan being required to have an aim to promote training and employment opportunities. This was of particular benefit given the inspector’s conclusion at paragraph 271 of the SR as to the benefits to the borough as a whole and Winsford in particular, where there were relatively high levels of deprivation and joblessness. The condition specified that that was to be achieved by undertaking to meet a target of not less than 50% of the total workforce on the site during the construction phase being resident in the Cheshire West and Chester, Chester East or Warrington Borough Council areas or resident within a 15 mile radius of the site. There was nothing that could rationally be said to be imprecise about a requirement to have not less than 50% of the total workforce on site being resident in the identified areas.

Taking the condition as a whole, it was limited to the construction period. The requirement that not less than 20% of the workforce are resident in the Borough of Cheshire West or Chester or within 15 miles of the site can be objectively determined against what is a specific area. Finally the requirement that the development be carried out in accordance with the plan is straightforward and attaches to the plan which may be approved. Any further detail can be provided in the plan to be approved, as the First Defendant acknowledged.

Mr Young further submits that the assertion that the condition would be difficult to enforce, partly because it would be difficult to detect a breach, also lacks any rational support. The Second Defendant has power to serve a planning contravention notice on the owner or occupier or anyone carrying out operations on the site, which could include the residence of all of those employed on the site. The areas were defined and the period was limited. The plan could include requirements for the developer to maintain a register of the workforce on the site which could be open to inspection by the Second Defendant’s officers on request. That would readily enable a breach to be detected. Moreover the Second Defendant as enforcement authority had not raised any objection or doubt as to its ability to enforce the proposed condition.

Moreover, he submits that the First Defendant could not rationally have rejected the structure of the condition which required the approval of a plan to be submitted and approved in accordance with which the development was then required to be carried out. That was the same structure as was adopted for the affordable housing condition which also required the submission and approval of a scheme in accordance with which the development was required to be carried out and which the First Defendant had found met the relevant tests in the Framework and the Guidance and on which he placed substantial weight as part of the social benefits of the development.

He further submits that this is in any event a common form of condition. He referred to a decision in respect of development at Bilsthorpe Business Park dated 1^st June 2016 where the First Defendant had imposed a condition requiring a scheme to promote and encourage local employment and economic opportunities to be submitted and approved to include the measures in the environmental statement, which set out opportunities and possible actions to be taken. Mr Young points out that the condition in the present case was more precise in that it set out specific percentages of the work force to be resident in the specified areas. In the Bilsthorpe decision letter, which was signed by the same officer as the decision letter in the present case, at paragraph 24 the First Defendant concluded that the condition was reasonable and necessary and met the tests in the Framework and the Guidance. The principle of the two forms of condition is indistinguishable. But the First Defendant has given no explanation why he should have reached a conclusion which was completely inconsistent with that decision made some five weeks earlier. The tests were not affected in any relevant way by the fact that the character of the development was different. The subsequent decision was arbitrary and inconsistent.

Mr Young also relied on an inspector’s decision at Ellesmore Port in respect of mixed development including 2000 homes dated 26^th August 2015, where the inspector had imposed a condition for local employment in similar terms and which he had held complied with the tests in the Framework.

Mr Whale relied on his submission set out above that overall the First Defendant can be seen from the terms of the decision letter to have had careful regard to the proposed condition and its terms, including in this case the opportunity for further definition as part of the submitted plan. He submits that the lack of precision was in what he characterised as an oxymoron that the submitted plan “shall aim to promote training and employment opportunities during the construction period for local people” as against the means to achieve this aim, which is to be by undertaking to meet a target of not less than the stated percentages. He submits that it is unclear what is meant as the requirement in the condition to include an undertaking to meet “a target” as part of the aim for promotion of training and employment for local people. It was this that led to the difficulty in enforcement. He did not submit that there would be any difficulty in identifying the relevant areas for the residence of the minimum percentages of the workforce.

As to the adequacy of the reasons, he submitted that this was not a principal controversial issue for the purpose of the guidance in Save Britain’s Heritage and South Bucks but a relatively minor issue. It was sufficient for the First Defendant to give his conclusions as to precision and enforceability without further elaboration, although here he has expressly acknowledged the opportunity for further definition in the submitted plan and referred particularly to the problems of breach detection.

As to other decisions of the First Defendant or by inspectors Mr Whale submits that it was clear that the facts of the other decisions relied upon were materially different, involving a waste treatment plant in one case and a major mixed and residential development in the other case. Neither decision had been drawn to the attention of the First Defendant for the purposes of this decision. The decision was properly to be taken in respect of the facts of the present case, applying the relevant policy tests. It was clear that this is what the First Defendant had done from the reasons which he had given. Matters of precision and enforceability in the circumstances of the particular case were clearly matters of judgment for the decision maker and not matters of law.

My conclusion as to the first sentence of the reasons is as set out above. It does not in my judgement provide any rational or intelligible support for the conclusion reached. As to the second sentence I accept that it is clear that the First Defendant has had regard to the terms of the condition, including the opportunity for further definition within the submitted plan. The adequacy of precision is in principle a matter for the judgement of the decision maker to be determined in the particular context and circumstances of the case.

In the present case, however, I find the explanation of the reasons underpinning the second sentence given on behalf of the First Defendant by Mr Whale wholly unconvincing. On a fair reading of the condition as a whole, it required the submission of a training and employment management plan and its approval by the Second Defendant; the plan was to aim to promote training and employment opportunities during the construction phase for local people by undertaking to meet the stated target minimum percentages; the Second Defendant would therefore be able to insist that as part of the plan there should be provisions that required that at any one time during construction the workforce on the site was not less than the stated percentages; beyond that it would be a matter to be determined in approving the submitted scheme by the Second Defendant or on appeal as to what further measures should be included in the plan but guided by the stated aim of promotion of local training and employment opportunities; and, once approved, the condition required the development to be carried out in accordance with the plan. In my judgement there is no rational ground on which that structure could be said to be inconsistent (the oxymoron as Mr Whale submitted) or otherwise imprecise.

Mr Whale did not make submissions as to any specific difficulty in enforcement. There was no evidence before the inquiry as to any difficulty in that respect. The Second Defendant did not object to the condition as submitted. The minimum percentages were to be achieved during the construction phase on what was a relatively limited development site. It was not suggested by the First Defendant that the condition was unreasonable as such. The means of enforcement available to the Second Defendant would include access to a register of workers employed at the site if that was included in the approved plan and in any event the service of a planning contravention notice, which could be served on the construction company carrying out the development. If a breach was detected, a breach of condition notice could be served, which would then make it a criminal offence to carry out the development not in accordance with the approved plan in that respect.

At the original inquiry a similar condition without the specified percentages of the workforce had been considered by the inspector as set out above. The evidence before him included evidence of other similar conditions imposed on appeal as complying with the relevant tests. The condition provided at the original inquiry had been revised, as the inspector noted at paragraphs 207 and 279 of the SR, to “provide more precision” by including the specified minimum percentages. The conditions at Bilsthorpe and Port Ellesmere did not include requirements for specified percentages of the workforce to be from stated areas, although no doubt that could have been included in the schemes to be approved. If the objection of the First Defendant was to the inclusion of this additional element in the condition (and that formed no part of Mr Whale’s submissions in this court), it would have been simple to have reverted to the original condition which was considered in the OR.

The specific points on which the First Defendant relied to discount this condition of insufficient precision and difficulty to enforce partly because ‘it would be difficult to detect a breach’ had not been raised at the inquiry. There was no evidence from the Second Defendant enforcement authority to support either contention. In submissions to this court Mr Whale has not been instructed to offer any explanation other than the suggested oxymoron, which in my judgment could not rationally support the First Defendant’s conclusions in either respect. The decision appears to be inconsistent with the conclusions on appeal by or on behalf of the First Defendant on similar conditions, of which one at least was before the inspector at the original inquiry. It has not been submitted that the point of precision was directed to the revision to the condition, but, if it was, it is not easy to see why the additional definition of the steps to be taken should offend that test in the Framework or Guidance. There is no evidence of any particular difficulty in enforceability or detection, at least to the extent which would affect the overall aims of the condition in this area of deprivation and joblessness. The First Defendant does not explain in either case what that might be and has not caused any explanation to be offered to the court.

Lord Brown made clear in South Bucks that the degree of particularity must depend entirely on the nature of the issue falling for decision. Given the absence of evidence of difficulty in enforcement or any objection on the grounds of lack of precision and the apparent inconsistency with the acceptance of similar conditions on other appeals, in my judgement the First Defendant was here under a duty to provide more by way of reasons as to why he had concluded that there was the insufficient precision or the difficulty in enforcement and detection. That would enable the parties and the court to determine whether there was indeed a rational or lawful basis for the decision. That is reinforced by the absence of any rational explanation to support the reasons submitted to this court. In my judgement the inadequacy of the reasons has substantially prejudiced the Claimant and this ground should therefore succeed. I should make clear that in my judgement the condition did potentially go to the weight to be attached to the economic and social dimensions of sustainability and accordingly would have been material in forming part of the overall planning balance.

The proposed condition provided:

“No dwelling which is not an affordable or self-build unit shall be constructed other than by a builder or company that:

i)

has a main office or registered office that was within the Cheshire West and Chester, Chester East or Warrington Borough Council areas at the date of this permission; and

ii)

Builds a total of not more than 500 residential units in any one year.”

In the Lyons Housing Review 2014 attention had been drawn to the declining number of SME builders, which it defined as those providing upto 500 dwellings in a year. In the Local Approach document submitted at the second inquiry by the Claimant attention was drawn to the Government’s support for small scale builders to support the local house building sector. It included letters from two local house builders interested in carrying out the proposed development.

The first sentence of paragraph 19 of the decision letter, in which the First Defendant considered this condition, used similar terms as above in respect of the condition not being necessary to make the scheme acceptable in planning terms. The parties’ submissions were again to the same effect as set out above.

In respect of the second half of that sentence Mr Young submits that the condition had been accepted at the inquiry as meeting national and local policy and supported as such by the inspector in the SR. It was therefore, he submits, bizarre and irrational that the First Defendant should have also concluded in the first sentence that the condition “would not be strictly relevant to planning policy”. The support of local SME builders as proposed would boost local house building and with it bring economic and social benefits to this deprived area. The inspector had noted at paragraph 206 of the SR that it would exclude volume housebuilders even if based in Cheshire because they produced about 1,000 homes per annum. The inspector had specifically concluded at paragraph 261 of the SR that it would support the government’s objective of boosting the local SME sector of the economy (see also paragraph 279). This was specifically supported by policy ECON1 of the CWACLP. Even if the reference to planning policy was to be construed as limited to the Framework (as suggested by Mr Whale but which Mr Young did not accept as a fair interpretation), it would be relevant to the Government’s support for sustainable economic growth (paragraph 19 of the Framework) and generally to the economic dimension of sustainable development.

As to the second sentence, he submits that there was positive evidence of the existence of at least two building companies interested in the development in the local area. More particularly in this relatively large and populated area there was no evidence at all of a lack of local house builders who would meet the terms of the condition and would wish to carry out the work. There was no evidence to support the First Defendant’s conclusion that enforceability would depend on the available builders or companies during the build-out period, whatever that might mean. The Second Defendant had not suggested any difficulty in enforcement and did not object to the condition. The inspector had concluded that it met the relevant policy tests including that of enforceability. There is nothing to suggest why enforcement would be difficult. The main office or registered office of a building company was a matter of record and was deliberately fixed to the date of permission to prevent offices being set up in the area simply for the purpose of meeting the condition. The 500 residential unit limit could be readily applied to exclude the volume builder, whose production rate would again be a matter of record. Smaller companies could be asked to provide that information or, where there were grounds to believe a breach had occurred, a planning contravention notice could be served. There is however no clear indication what was in fact in the mind of the First Defendant in concluding that the condition would be difficult to enforce, depending on the availability of builders in the specified area.

As to the suggested lack of precision, Mr Young submits that the terms of the condition are specific and can be objectively determined. There was no rational support, at least on the bare reason given in this respect, why there was a lack of precision.

Similarly he submits that there is nothing to explain why the condition would not be reasonable in all other respects. Given that it supported local and national policy and in the absence of any evidence why it would be unjustified or disproportionate, the First Defendant’s conclusion that it would be unreasonable in all other respects was irrational and in any event unexplained.

On behalf of the First Defendant Mr Whale submits that in context the reference to not being strictly relevant to planning policy should be taken as a reference to the Framework, which does not in terms refer to the support of local SMEs. He does, however, accept that in general it would be relevant to and support the Government’s objective to support the local housebuilding industry.

He explains on behalf of the First Defendant that the problem of enforceability with the condition arose because of the problems in identifying the location of the main office of the company or companies involved in the construction of this development. Coupled with that, there would be no objective means to determine whether any of the companies had built over 500 residential units in the rolling one year period. These difficulties were self-apparent on the face of the condition and did not need to be spelt out by the First Defendant beyond his acknowledgement that it did to a degree depend on actual builders or companies available through the construction period.

Mr Whale did not offer any explanation or make submissions as to other matters which would support the reasons based on lack of precision or reasonableness in all other respects.

My conclusions in respect of the first part of the first sentence as to the condition not being necessary to make the development acceptable remain as set out above. As to the second half of that sentence, on a fair and straightforward reading of the words used in context I consider that it is wholly unwarranted to infer a qualification that this only referred to the Framework. In any event it seems to me not rationally supportable that the condition was not “strictly” relevant to the policies in the Framework in respect of sustainable economic development and otherwise. It is plainly relevant specifically to the economic policies in the CWACLP.

There was no evidence before the inquiry or the First Defendant of any shortage of house builders completing 500 or less units in a year in the three Borough Council areas, which contain significant areas of economic and other development. In any event the Claimant had adduced specific evidence of actual interest from qualifying building companies in the local area. As above, the Second Defendant had not suggested any potential difficulty in enforcement and the inspector was plainly satisfied on the evidence before him that there was none.

While the reasons given do not identify why the availability of builders in the area would affect enforceability, Mr Whale has explained to the court that it was because of the difficulty of determining the location of the main or registered office of the company carrying out the construction of the market housing at the date of the permission. That was compounded, he submits, by the problems in finding out the total number of residential units built by the particular company on a rolling year basis.

Mr Young’s answer to that is that it would normally be easy to find out the main builders involved in construction who would wish to advertise their presence on site. Their registered or main office would be a matter of record, but, if it was required, further inquiries could be made, including if necessary the service of a planning contravention notice. The same would apply to the total number of units completed in any one year. It is also relevant in my judgement that enforcement will be always a matter of discretion for the enforcement authority and can reasonably be focussed on the main objectives underpinning the condition to be enforced. Hence marginal points of uncertainty as to the precise numbers of units completed and whether they were residential would not generally undermine the overarching objective of the condition to support the local house building industry.

However the court’s role in this statutory challenge is to determine whether the reasons given were adequate on the approach in South Bucks and, if so, whether the First Defendant’s conclusion in this respect was irrational on normal Wednesbury principles. I remind myself that the onus is on the claimant to demonstrate the illegality. In my judgement in this context the reason given was sufficient to indicate the basis on which the First Defendant concluded that the condition would be difficult to enforce, given the nature of the development and the requirements to be satisfied in respect of the companies carrying out the construction.

Was it then perverse for the First Defendant to have concluded that the condition would be difficult in practice to enforce given the context of the condition and the development proposed? This was in my judgement properly a matter of planning judgement having regard to the tests in the Framework and the Guidance, which explains “unenforceable” as whether it would be practicably possible to enforce the condition, explaining that as including those conditions for which it would in practice be impossible to detect a contravention or remedy any breach of conditions. The First Defendant’s explanation to the court goes to detecting whether there was a breach rather than remedy, which could be readily addressed by a breach of condition notice. In my judgement, when seen in the context of the Guidance which the First Defendant was purporting to apply and on the evidence before the First Defendant, there was here no rational basis to say that it would not be practicably possible to enforce this condition or in practice impossible to detect a contravention of the condition. Mr Whale did not seek independently to support the conclusions as to precision or reasonableness and in my judgement those conclusions were not supportable on any rational basis or alternatively the reasons were inadequate to explain such lawful basis that the First Defendant may have had but which has not been put before the court.

Accordingly this ground also succeeds.

The proposed condition provided:

“Prior to the commencement of development a Local Procurement Strategy shall be submitted to, and approved in writing by, the local planning authority. The Strategy shall include:

i)

Details of the initiatives to ensure that 20% of the gross construction costs of the development are delivered by businesses based in the Borough of Cheshire West and Chester;

ii)

The timing and arrangements for the implementation of these initiatives; and

iii)

Suitable mechanisms for monitoring the effectiveness of these initiatives.

All parts of the approved Local Procurement Strategy shall be implemented in full.”

The first sentence of paragraph 20 of the decision letter, which addressed this condition, is in effect the same as the first sentence of the paragraphs dealing with the other conditions as set out above and the submissions were the same in this respect.

As to the second sentence that the condition was not “strictly related to planning”, Mr Young submits that local procurement goes directly to the economic and related objectives, to which he referred above in respect of the local builders condition. He submits that it would not be possible on a fair reading to infer that in context the reason only related to planning policy, as suggested by Mr Whale. However, even if it was, it was plainly irrational for effectively the same reasons as he had submitted in respect of the local builders condition.

As to the third sentence that the condition would be difficult to enforce in part because it could prove difficult to detect a breach, Mr Young notes that the First Defendant has not suggested that the proposed condition lacked precision for the purpose of the tests. Basic enforcement is secured by the requirement in the condition that the Strategy is to be implemented in full and this could be subject of a breach of condition notice or other enforcement action. As to detection of a breach, he draws attention to the terms of the condition which required the Strategy to include suitable mechanisms for monitoring the effectiveness of the initiatives in the previous two subparagraphs. The effectiveness of the initiatives could be readily monitored, he submits, by requiring a regular report from the contractor as to what proportion of the overall gross costs had to date been delivered by businesses based in the Borough. That could be required under the Strategy and also be the subject of a planning contravention notice, so far as necessary. The amount of costs would be a normal part of the accounting of the contractor, as would the source of supply of goods or labour. Whether or not the relevant supplier came within the defined area of the Borough was again a matter of objective fact.

Moreover the Second Defendant had not suggested any difficulty in enforcement or otherwise objected to the condition, which had in turn been supported by the inspector. He submits that in the circumstances it was not rationally open to the First Defendant to conclude that the condition would be difficult to enforce or that it could prove difficult to detect a contravention.

Moreover he also relies on the Ellesmore Port decision referred to above, where the condition included in the required local procurement and employment scheme details of local procurement initiatives for goods and services, which had been accepted by that inspector as meeting the tests in the Framework. The proposed condition in the present case is more precise and therefore the scheme would be more readily enforceable in that it specifies the particular percentage of gross construction costs which are to be delivered by companies based in the Borough. The First Defendant has provided no explanation why he has reached a different conclusion in the present case.

As to the last sentence of paragraph 20 that it is unclear what the position is in relation to the availability of businesses within the borough to meet the criteria and therefore whether this condition would be unreasonable in all other respects, Mr Young submits that there was no evidence to support this suggestion as to lack of clarity or any consequent unreasonableness in the condition.

Mr Whale submits that the fair reading of the second sentence in context is that it was referring to planning policy in the Framework, which does not specifically refer to local procurement. However, his submissions focussed on the third sentence relating to the difficulty of enforcement, in part because it could be difficult to detect a breach, which, he submits, would be sufficient on its own to support the decision of the First Defendant on this proposed condition. In his submission it would in practice be impossible to detect whether and at what point the 20% percentage was not met and over what period. This was a matter for the planning judgement of the First Defendant and one which was amply supported on the face of the condition as proposed.

He further submits that the last sentence adds weight to that central conclusion in that there was in fact no evidence as to the availability of businesses in the borough which would meet the requirements of the Strategy and that it was therefore unclear whether the proposed condition would be reasonable in all other respects.

My conclusions in respect of the first sentence of this paragraph are as set out above. On the second sentence I again reject the inference that Mr Whale submits should be drawn that this only relates to the Framework. Even if it did, it would not in my judgement be supportable in that local procurement would again be related to the objectives for sustainable economic growth as well as the economic dimension of sustainability quite apart from the local policies for the economic and other support of this deprived area. In my judgement the reason provides no rational support for the conclusion of the First Defendant on this condition.

The First Defendant does not enlarge on his reasons why it could prove difficult to detect a breach of the condition. Mr Whale explains on his behalf that it was because of difficulty of determining the gross construction costs and obtaining evidence that the percentage was not achieved over the construction period. However, as Mr Young submits, this must depend on the terms of the Strategy which is approved and which is expressly to include suitable mechanisms for monitoring the effectiveness of the initiatives. Moreover, the Strategy is also to include the timing and arrangements for the initiatives to ensure that 20% of the gross costs are delivered by businesses based in the Borough. That would properly enable suitable staging points at which the percentage of gross costs would be required to be achieved with the overall objective of securing that the requirement of the condition was met. The information would or could be available to the contractor, including where the suppliers were based. It is not unusual to have a scheme where records are to be made available to the enforcing authority on request or in accordance with a specific timeframe. Moreover, the Second Defendant had not suggested any difficulty in enforcement or in detecting a breach.

Again in my judgement it is relevant to consider the conclusion of the First Defendant in the light of the particular guidance which the First Defendant was purporting to apply. As I have set out above, the test is explained in the Guidance as whether it would be practicably possible to enforce the condition including whether in practice it would be impossible to detect a contravention. Given that the Strategy is expressly to include measures to enable monitoring of the effectiveness of the initiatives and to include the timing and arrangements, I find it very difficult to conceive of why it would in practice be impossible to produce a Strategy that put in place arrangements to ensure that the information was regularly provided to the Second Defendant to demonstrate the performance and effectiveness of the initiatives in terms of the percentage of the gross construction costs supplied by firm based in the Borough. Certainly there was no evidence to support that proposition.

I do not find that the reason put forward on the First Defendant’s behalf in this court supports a rational conclusion that it would as a result be difficult to enforce in part because it could be difficult to detect a breach or otherwise, so as to fail the test of enforceability, which I have set out above. If there was some additional factor which has not been put before the court, it should have been expressly set out in the reasons. On the conclusions of the inspector and the evidence before the First Defendant in my judgement there was no rational basis for the conclusion which he reached in this respect for the purposes of the Framework and the Guidance.

As to the last sentence that it was unclear what the position is in relation to the availability of businesses within the specified area to meet the criteria and therefore whether the condition would be reasonable in all other respects, the concern in line with the Guidance would seem to be that the condition should not impose an unjustified and disproportionate burden on the Claimant as to the implementation of the permission because of the uncertain availability of qualifying firms to deliver the required percentage of the gross construction costs. This had not been questioned by the Second Defendant at the inquiry. The effectiveness and relevance of the condition had been accepted by the Second Defendant and the inspector, which in turn implied that they were respectively satisfied that there were or would be firms in the Borough which were capable of providing 20% of the gross construction costs in materials and services. That would hardly be surprising in a built up borough such as Cheshire West and Chester. In any event the Strategy would be able to define, so far as necessary, how the requirement for the businesses to be based in the Borough was to be met and any other requirement. There was no evidence at all or any basis on which it might be inferred that there would be an insufficiency of businesses in the Borough to support the supply of materials and services to this level.

In any event, in view of my conclusions set out above, the question is whether the conclusion of the First Defendant that it is “unclear” was sufficient on its own to support the decision to place no weight on the proposed condition because it could not be attached to any planning permission in accordance with the tests in the Framework and the Guidance. In my judgement the conclusion of the First Defendant that it was unclear whether or not there was the availability of businesses would be insufficient rationally to support a conclusion that that condition would be unreasonable unless there was some evidence to show that there could in fact be a lack of availability such as to make the imposition of the condition unjustified or disproportionate. For the reasons set out earlier I do not consider that the First Defendant had any rational or cogent basis on which he could conclude here that there was a real prospect of that lack of availability so as to reject the condition on the basis that any Strategy that accorded with the condition would have been unreasonable in this respect.

My overall conclusion is accordingly that the reasons given by the First Defendant as explained by Mr Whale do not rationally support his conclusion that the relevant tests were not met by this condition or his conclusion that no weight should be placed on it. This ground accordingly also succeeds.

It is common ground that the housing requirement figure in the CWACLP was a minimum figure and further that the allocations under policy H1 of the WNP did not impose a cap on the numbers of dwellings to be provided.

As set out above, in paragraph 15 of the decision letter the First Defendant agreed with the inspector that there was a five year supply of housing land for the reasons given by the inspector.

In paragraph 14 of the decision letter the First Defendant agreed with the inspector that there would be conflict with Policy H1 of the WNP with reference to the inspector’s conclusions in paragraph 260 of the SR. Paragraph 14 was introduced with the statement that for the reasons given by the inspector at paragraphs 248-259 of the SR the First Defendant agreed that there would be compliance with some policies of the CWACLP and conflict with others. In paragraph 256 the inspector had set out his reasons for his conclusion that there would be conflict with the WNP, including that policy H1 should not be seen as a cap on housing development with reference to the relevant part of the Claimant’s reported case. However, he pointed out that the Claimant’s site had been rejected as not complying with the vision of the WNP and concluded that for sites to come forward in compliance with the WNP they would need to fit with its vision.

Subsequently in paragraph 282 and as part of his planning balance and overall conclusions the inspector concluded that there was also ‘a degree of conflict’ with Policy H1 of the WNP as opposed to other policies where he had concluded that the proposal would be contrary to the particular policy.

As part of his planning balance and overall conclusions at paragraph 29 the First Defendant referred back to his reasons in paragraph 14 of the decision letter and stated that in line with the inspector he found conflict with the WNP. He then concluded that with reference to the advice in paragraph 198 of the Framework the conflict with policy H1 of the WNP meant that the proposal could not be said to comply with the WNP overall so that planning permission should not normally be granted.

On the basis of the above passages in the decision letter and the SR Mr Young submits that the First Defendant had failed to understand that there was in fact no direct conflict with Policy H1 because it did not preclude development on other sites. That was why the inspector recognised that there was only a “degree of conflict” with Policy H1 because of his conclusion that the site did not comply with the vision of the WNP. He submits that this was not addressed by the First Defendant at all. As the conflict with the WNP and in particular Policy H1 formed a critical part of the planning balance in the context of the Framework polices, this was fundamental to the overall decision and the decision should be quashed.

Mr Whale submits that these submissions are unarguable because on a fair reading of the reasons for the decision as a whole, including the references to the relevant parts of the SR, it is plain that the First Defendant was agreeing with the inspector’s analysis of the application of the development plan and as to the basis for conflict with policy H1 in particular, whether or not it was described as a degree of conflict.

In my judgement the approach of Mr Young fails to give an overall and fair reading of the reasons in this respect. It is entirely clear that the First Defendant was agreeing with the analysis of the inspector as to the conflict with Policy H1 and the WNP. There is no indication in the decision letter that the First Defendant believed that a cap was imposed in the WNP on development by Policy H1 or otherwise. The First Defendant was fully entitled to conclude that in this case the conflict with WNP Policy H1 meant that the proposal could not be said to comply with the WNP. In my judgement accordingly this ground fails.

In view of my conclusions on ground 6 the alternative ground does not arise. However, I should make clear that in my judgement in any event the ground would not have been made out. The WNP had been made and was valid. Policy H1 was applied by the inspector and the First Defendant in accordance with its terms and for the reasons set out above I am not persuaded that there is any demonstrated error of law in the decision of the First Defendant or any inadequacy in his reasoning in this respect.

It is submitted by Mr Young that a letter from Brandon Lewis MP as Minister for Housing and Planning, undated but sent in about March or April 2016 to the Chief Inspector of the Planning Inspectorate, demonstrated that the First Defendant had a closed mind in determining the present appeal. Mr Brandon Lewis appears to have been the determining minister in the present appeal.

The letter referred to the Government’s support for neighbourhood plans and said that planning inspectors determining appeals needed to be fully aware of the importance that the Government attached to neighbourhood plans as reflected in the policy in the Framework.

In my judgement this ground is wholly unarguable. The policy in paragraph 198 of the Framework was a material consideration, whereas here the First Defendant found that there was conflict with the WNP. However, it is apparent from the decision letter read as a whole and in the light of inspector’s conclusions in the OR and SR that in overall approach the decision did not reflect a closed mind, but was a decision which was made in accordance with section 38(6) of the 2004 Act on a balance of the relevant considerations.

Following the conclusion of the original inquiry, the First Defendant had indicated that he would give a decision on the appeal by 22^nd December 2014. On 20^th August 2014 the Second Defendant wrote on to the First Defendant explaining that the Second Defendant could now show a five year supply of housing land for the reasons set out in the letter. At the original inquiry it had accepted that there was not a demonstrated five year supply of land. It asked for this material change in circumstances to be taken into account.

On 26^th August 2014 agents for the Claimant wrote to the First Defendant, rejecting the contention of the Second Defendant that there was a five year supply of housing land and asking for the inquiry to be reopened so that the evidence could be tested through cross-examination.

On 23^rd September 2014 an officer in the Planning Casework division of the First Defendant emailed another officer in that division. The email referred to the OR, which had by then been provided to the First Defendant, although not published, and noted the exchange of correspondence seeking reopening of the inquiry and other representations. The email noted that the WNP was going to referendum on 23^rd October 2014 and that the local MP had asked that the decision be deferred until after that date. The email commented that the CWACLP inspector was due to publish his report in October 2014 and that that might provide an up to date opinion on the five year supply of housing land. It continued:

“In terms of where that leaves us, my sense is that the case may prove to be arguable either way. Although the Council and the appellant have copied their reps to each other, I think that at this stage it would be reasonable (rather than unavoidable) for CLG to do a formal ref back exercise (several people spoke at the inquiry including a local opposition group which is not a rule 6 party). That will inevitably take us beyond the point at which the NP referendum will have been held and may also take us beyond the point at which the LP examiner’s report is available. I do not think that we should put up a sub to Ministers until we have done the ref back.”

The email concluded by asking whether the other officer agreed with that view.

On 23^rd October 2014 the referendum into the WNP was held and on 19^th November 2014 the WNP was duly made so that it formed part of the development plan.

The Claimant’s agents renewed their request to reopen the inquiry in three further letters written to the First Defendant in November and December 2014. That included reference to the positive outcome of the WNP referendum and the making of that plan.

In the event by letter dated 19^th December 2014 the First Defendant wrote to the parties at the inquiry seeking written representations on the additional representations by 16^th January 2015 and that the date for the decision would be varied until on or before 6^th March 2015.

In January 2015 the CWACLP was adopted with modifications in accordance with the recommendations of the examining inspector.

The Claimant’s agents wrote again repeating their request that the inquiry be reopened. On 5^th March 2015 the First Defendant consulted other parties about this request.

On 14^th April 2015 the First Defendant wrote to the parties with his decision to reopen the inquiry for him to be informed on the extent to which the proposed development would comply with the development plan including the WNP and the CWACLP and the housing land supply.

Arrangements were thereafter made for the reopening of the inquiry on 15^th September 2015.

Mr Young submits that the delay in determining the appeal from the original inquiry in June 2014 until the final decision on 7^th July 2016 on what was a relatively straightforward and modest housing proposal was wholly unreasonable and constituted an abuse of the First Defendant’s powers. Moreover, the Claimant had suffered prejudice, which is not remediable, in that as a result of the delay the appeal was determined to be in conflict with the WNP and there was no longer a housing land supply shortfall, which in the event led to the First Defendant dismissing the appeal contrary to the recommendations of the inspector.

Moreover he submits that the email dated 23^rd September 2014 demonstrates that officers of the First Defendant had acted unlawfully in deliberately postponing the decision on the appeal in the light of the OR so that the WNP could be adopted following the referendum.

Mr Young does not make any complaint about the time taken to reopen the inquiry after the First Defendant’s letter dated 14^th April 2015, which he accepted was proportionate to the procedural and other requirements to be met.

Mr Whale rejects these submissions. The email dated 23^rd September 2014 simply set out the position as it stood in the light of the Claimant’s request that the inquiry be reopened. The decision to seek further written representations was well within the range of rational response to the representations that had been made following the close of the inquiry. The further decision to reopen the inquiry was in response to the Claimant’s renewed request to that effect. Even if there was reliance by the officer in part on the fact that the WNP would have been made by the time the reference back had been completed, there is no basis for concluding that this made any difference to the fact that in the First Defendant’s view further representations were required on the housing supply and thereafter to address the question of the development plan.

In my judgement there is no basis for the challenge to the procedural decisions of the First Defendant in handling the post inquiry representations, given the nature of the representations made and in particular those relating to the housing land supply. Throughout the Claimant was seeking the reopening of the inquiry to test the Second Defendant’s contentions in that respect. On that basis it was inevitable that the WNP would have been made and the CWACLP adopted before the final decision was made. In any event I do not read the email dated 23^rd September 2014 as advising that the case should be referred back for consultation in order that the referendum could be held and the WNP made if it was supported on the referendum. Read as a whole, it seems to me that it was simply noting that that would be the consequence, which would as a matter of fact meet requests made by the MP. In any event there is no evidence that this was the basis for the final decision to seek a reference back, which was lawfully open to the First Defendant as set out above. Accordingly this ground also fails.

Mr Young submits that, while the inspector made a specific finding in paragraph 287 that the proposed development would accord with the presumption in favour of sustainable development, the First Defendant failed to make any finding as to whether the proposed development was sustainable or attracted the presumption in favour of sustainable development. He submits that this was a fundamental flaw in the First Defendant’s consideration of the appeal, alternatively the First Defendant failed to give adequate reasons for his decision on this principal controversial issue so that the Claimant cannot know whether the decision was made lawfully or not.

In paragraph 25 of the decision letter the First Defendant set out his conclusions on sustainability in the light of the policies in the Framework. At paragraph 30 as part of his planning balance and overall conclusions within the context of section 38(6) of the 2004 Act the First Defendant included specific reference to his conclusions on sustainability, giving them weight in his conclusion on the planning balance that the benefits did not outweigh the conflict with the development plan and the harm to the environmental dimension of sustainable development from the loss of open fields. In my judgement that analysis is not to be faulted as a matter of law and was clearly open to the First Defendant on the evidence in the present case. The reasons were entirely adequate. The First Defendant was obliged to give reasons for his decision, not an analysis of the detailed conclusions of the inspector. This ground accordingly also fails.

After the close of the first inquiry letters were written by the local MPs in support of dismissing the appeal. In each case the letters were made available before the reopened inquiry so that representations could be made. There is no evidence that the First Defendant entered into discussion or correspondence with the MPs as to the merits of the case. Mr Young relied on Broadview Energy Developments Ltd v SSCLG [2016] EWCA Civ 562, but, as he conceded, the facts were materially different in that case and in any event that appeal was dismissed, as had been the challenge at first instance. There is in my judgement no basis for the contention in the present case that there was any actual or apparent bias or breach of natural justice. The existence of a draft submission from one officer in the planning casework division which proposed a recommendation that the appeal be allowed but which was subsequently changed in the submission that was made to ministers, which recommended dismissal of the appeal, does not demonstrate any illegality or irrationality in the decision process.

On the disclosed material it is apparent that in February and March 2016 officers in the planning casework division drew attention to an apparent discrepancy between the findings of the inspector on the housing supply in the SR and those of another inspector in his report on a separate appeal at Tattenhall, which was in the same Borough Council area. The emails do not indicate any final resolution of these apparent discrepancies, but it did not form part of the submission to the First Defendant or any part of the basis for his decision which was based on the findings of the inspector on the housing supply in the SR and which the First Defendant accepted at paragraph 15 of the decision letter. There is no challenge in this case to those conclusions of the inspector or their acceptance by the First Defendant as such. In these circumstances there is no basis for the contention that as a matter of fairness or otherwise the First Defendant should have given an opportunity to the parties in the present appeal, including the Claimant, to comment on the findings of the inspector in the Tattenhall inspector’s report, which was not taken into account in the First Defendant’s conclusions on the present appeal. This ground accordingly also fails.

For the reasons set out above I have concluded that the Claimant succeeds on grounds 2-4. It has not been submitted that in these circumstances I should exercise my discretion against quashing the decision or that section 31(3A) of the Senior Courts Act 1981 is engaged. In my judgement the conditions subject to grounds 2-4 were each plainly material to the final decision of the First Defendant and it is not possible to say what the decision would have been if they had been taken into account. In the circumstances accordingly the claim should be allowed on grounds 2-4 and the decision should be quashed.