Ian Dove QC appeared for the Interested party Hallam Land Management on the 10th September 2013 before HHJ Denyer QC in an application brought pursuant to Section 288 of the Town and Country Planning Act 1990. In pursuing the challenge, the Claimant, Stroud District Council, were seeking to challenge the decision of Mr J P Roberts, a Planning Inspector appointed by the Secretary of State to deal with the Interest Party’s appeal who allowed the appeal by virtue of a decision letter dated January 2013. 

The land in question is at Box Road, Cam in the County of Gloucestershire. The land lies within the jurisdiction of Stroud. The prospective developers of the land are the Interested party Hallam Land Management Ltd. On the 25th April 2011 Hallam applied to Stroud to build 71 houses on the site. On the 18th November 2011 Stroud refused the application. Hallam appealed pursuant to section 78 of the Act. The Inquiry was held on 21st February 2012. Because of the illness of the Inspector, his decision letter was not issued until January 2013. Between these two dates Stroud submitted further evidence and both they and Hallam made further submissions. The Inspector granted permission. It was that decision that Stroud were seeking to challenge. 

HHJ Denyer QC said that although Stroud had “dressed it up in various ways”, the challenge put forward boiled down to two main headings/ Grounds-

a)    Character and appearance and sustainability of the development, particularly in the light of the decision of previous Inspectors.

b)    Housing Supply. 

a)    The Claimants argued that the Inspector failed to provided adequate reasons in relation to his consideration of other Inspectors’ decisions and reports including that the site was in an unsustainable location however, this was strongly opposed by Ian Dove QC who contended that whilst there were some limitations in relation to walking to a primary school, any residual harm was “very limited” and that overall the proposal was compatible with the NPPF. Ian Dove QC submitted that the Inspector therefore gave more than adequate reasons for concluding in relation to the appeal proposal assessed against its particular factual circumstances (including, in particular, the offer of improvements into highways infrastructure) that consent should not be refused on the grounds of sustainable transport. When the decision letter was read as a whole Counsel suggested that the Claimants’ complaints were misconceived.  

In relation to the suggestion that the Inspector had failed to have proper regard to earlier appeal decisions HHJ Denyer QC stated that “The idea that they should be in some way binding upon the Inspector in 2013 seems to me to be a nonsense.  In any event the reasons given by the Inspector in our case entirely justify the conclusion that he came to.  The objections in 1981 were not the same, the planning environment was not the same.  The economic environment was not the same and it seems to me to be ludicrous to suggest that the Inspector should be bound by a decision on the facts taken by someone else 30 years earlier.  As to the 2005 matters, the Inspector had held an inquiry under the local development plan.  He was not as such ruling on a planning dispute.  He was looking at whether the site should be included within some new settlement boundaries in Cam.  He rejected such inclusion but as the Inspector in this present case said (at paragraph 17) “the Inspector in that case was assessing the site in relation to others put forward in the plan rather than dealing with it on its own merits.” 

b) Ground b related to a suite of issues with respect to the five year housing supply conclusions of the Inspector. The Claimants argued that the Inspector had mis-understood the 2011 figure and that he had thought they had not been formally examined in a way that the 2012 figures had not. Counsel Ian Dove QC argued that the Claimant’s criticisms were based on an incomplete and inaccurate reading of the decision letter and that in the circumstances, the Inspectors conclusions were wholly rational. 

Ian Dove QC argued that the Inspector had provided clear, appropriate and adequate reasoning for the conclusions which reached both in relation to sustainable travel and in relation to the question of whether or not the Council had a 5 year land supply. 

In relation to the Claimant’s arguments HHJ Denyer QC stated “I find these criticisms wholly unconvincing.  They get very close to the complaint of every litigant who has ever lost a case namely that it was wrong of the judge to prefer the evidence given by the other side.  I note the points made by the Secretary of State in the skeleton argument filed on her behalf and by the interested party.  I find them compelling.  In my view – 

(1)    The Inspector undoubtedly appreciated (and could not have failed to appreciate) that the 2012 figures were more up-to-date than the 2011 figures.  Given the track record of the local authority I do not myself think that the Inspector can remotely be criticised for preferring the 2011 figures particularly since these were the figures that everyone had agreed were robust at the hearing in front of the Inspector.  In any event Stroud accept that it was open to the Inspector to prefer the 2011 figures and this he did.

(2)    I do not believe that the Inspector had misunderstood the 2011 figures.  It is true that he said that the 2012 figures had not been “formally examined” but, given what was set out in the agreed statement in front of the Inspector at the time of the hearing he would also have understood that the 2011 figures had not been formally examined.

(3)    In his witness statement of 4th March 2013 Mr Gilbert (page 23) says (in a passage I have already set out) that 
“It is important to note that the lower figure was adopted by the council as representing current needs and the higher figure allows for more housing releases in the event the economy performs better in the future.  The lower figure was therefore used in the five year housing supply calculation as the figure best representing the council’s immediate housing needs and most suited to the five year housing supply scenario.  This is what was contained in the further evidence submitted to the Inspector in November 2012.”
In these circumstances it is difficult to see how a criticism based upon the alleged failure by the Inspector to adopt the median figure can possibly succeed.  He can hardly be criticised for not doing something he was never asked to do.

(4)    The approach of the Inspector to the “windfall” figures was clearly and obviously in my view a conclusion that he was entitled to come to.  Likewise his scepticism about the Littlecombe development was a scepticism which was properly open to him.  

HHJ Denyer QC therefore agreed with the Defendant and Interest party and therefore found that the challenge to the decision of the Inspector failed. 

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