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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Laing Homes Ltd. v Secretary of State for Transport, Local Government and the Regions & Anor [2002] EWHC 1967 (Admin) (1 October 2002) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/1967.html Cite as: [2002] EWHC 1967 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		1 October 2002

 


Mr Justice Richards:

1. The claimant, Laing Homes Limited (“Laing”), challenges under s.288 of the Town and Country Planning Act 1990 a decision of the Secretary of State dated 6 February 2002 which granted outline planning permission to Pelham Homes Limited (“Pelham”) for residential development at a site North of Whiteley, Fareham, Hampshire.
2. At no stage prior to the decision did Laing object to Pelham’s application. Its present challenge arises out of the implications that the decision, or the reasoning in it, has for Laing’s own application for planning permission for residential development at a site at Peters Road, Fareham, which is still before the Secretary of State following a call-in. In essence Laing complains that, for reasons that were unknown to Laing until the decision was issued, the decision meant that only one of the sites would gain planning permission and the Secretary of State acted unlawfully and unfairly in deciding to grant permission in respect of the Pelham site without considering whether the Laing site was a better alternative or alerting Laing so that it could make representations on the point. Thus the main issues raised by Laing are (1) whether in determining the Pelham application the Secretary of State should have considered the availability and suitability of the Laing site, (2) whether it was incumbent upon him to address the issue of the comparative merits of the two sites, (3) whether he acted unfairly in failing properly to consider the merits of the Laing site or in failing to afford Laing a proper opportunity of being heard before a decision was made in respect of the Pelham site, (4) whether he failed properly to understand and apply the policy requirements of PPG3 and (5) whether adequate reasons were given.

Factual history

3. The relevant structure plan is the Hampshire County Structure Plan 1996-2001 (Review), adopted in January 2000. The structure plan requires constituent authorities to make provision for new housing, including a baseline housing provision in policy H2 and a reserve housing provision in policy H4. The relevant local plan is the Fareham Local Plan Review, adopted in March 2000. In order to ensure that sufficient land is available to meet the structure plan requirements for the period 1999-2006, policy H1 of the local plan allocates a number of sites for residential development, with an indicative number of dwellings for each. They include the Pelham site (260 dwellings) and the Laing site (210 dwellings), as well as a third major site at Hunts Pond Road (240 dwellings). Both the Pelham site and the Laing site are greenfield sites the development of which would constitute an urban extension in policy terms. They were the only two which were before the Secretary of State for determination at the material time.
4. The planning application in respect of the Pelham site was made on 26 November 1999. Fareham Borough Council resolved to grant outline planning permission on 26 April 2000, subject to call-in by the Secretary of State. The application was called in by the Secretary of State on 7 August 2000. A public inquiry was held on 21-22 November 2000. The inspector subsequently reported to the Secretary of State, whose decision letter was issued on 6 February 2002.
5. The planning application in respect of the Laing site was made on 25 October 2000. The council resolved in principle to grant outline planning permission on 11 July 2001, subject to call-in and to a number of unproblematic outstanding matters. The application was called in by the Secretary of State on 31 October 2001. A public inquiry was held on 25-28 June 2002. The Secretary of State’s decision is still awaited. (The planning application was in fact made in the name of Bovis Homes and there are references in the relevant documents to Bovis Homes as well as to Laing. But I shall refer throughout to Laing, as was done in the submissions before me.)
6. Thus at every stage the two applications moved in parallel, though with the Pelham application always in advance of the Laing application. In view of the way in which Laing’s case is put, however, it is helpful to examine the two applications together when going through the chronology in greater detail.
7. No elaboration is needed in relation to the early stages of the Pelham application, namely the application itself and the council's resolution to grant permission. In directing the subsequent call-in on 7 August 2000, the Secretary of State stated that the matters on which he particularly wished to be informed for the purpose of his consideration of the application included:

"(a) the relationship of the proposed development to the development plan for the area;

(b) the relationship of the proposed development to Government policy advice in Planning Policy Guidance Note PPG 3, in particular in respect of … the advice in the PPG on a sequential approach to brownfield/ greenfield sites ...;

….

(e) if the proposed development is not in accordance with PPG3 and/or the development plan, whether the need for the development and benefits from it would nevertheless justify the grant of permission".

8. Those issues were considered at length at the public inquiry and in the inspector's report. The case for Pelham and the council was that the development was in accordance both with the development plan and with PPG3. Heavy reliance was placed on the identification of the site as an allocated site under local plan policy H1 and the findings of the local plan inspector which underlay that allocation: the local plan inspector had conducted a public inquiry in 1998 and reported in 1999. As it was put in the conclusions of the inspector's report on the Pelham application:

“147. The Council strongly supports the application, seeing it as fully consistent both with the development plan, and with PPG3. It was impressed upon me that, although the development plan (i.e. both the structure and local plans) and the final version of PPG3 were adopted/issued at about the same time, previous emerging guidance was incorporated into the emerging development plans, and was taken into account by the County and District Councils and by the local plan Inspector.

148. The inquiry proposal is not new; its merits as a housing allocation have already been exhaustively examined, and supported, at a local plan inquiry. Apart from a few individual local residents, and a local residents' association (not counting the letters of objection), there was no opposition to the proposal at this call-in inquiry. None of these objectors presented any detailed or documentary evidence ….”

9. On call-in issue (a), the inspector concluded that the Pelham application would be fully consistent with local plan policy H1 and, more generally, would not only be consistent with the development plan but would be a positive step towards its implementation. On call-in issue (b), he concluded overall that the application would be consistent with the aims of PPG3. In particular, as regards the sequential approach to brownfield/greenfield sites, he stated:

“163. … In the terms of PPG3, this is an important topic, but I do not need to labour it. In brief, the parties' evidence stresses the point, which I accept, that throughout the local plan process previously developed land in urban areas was identified first as potential housing land. But there remained a need to identify some greenfield land, in order to meet the structure plan housing requirement. This was accepted and supported by the local plan Inspector.

164. I have no reason to disagree with that Inspector's conclusions. They were reached after a far more exhaustive, borough-wide study of other sites and development options than was possible at this inquiry.

165. As an urban extension, the application site comes second in preference, under the sequential search sequence, to previously developed land in urban areas (PPG3, para 30). PPG3 para 67 refers to urban extensions. To paraphrase, it describes them as likely to prove the next most sustainable option after building on sites within urban areas. This is so especially where it is possible to utilise existing infrastructure, where there is good access to public transport (or where new provision is made), and there is good access to jobs, schools, shopping and leisure facilities. In general, I consider that these conditions obtain with the present proposal.

166. … I conclude from all this that although the application site is not the first theoretical preference under PPG3's search sequence, it represents the second preference and meets the search requirements.”

10. In relation to call-in issue (e), the inspector observed that strictly speaking there was no need to consider it because the proposal accorded both with the development plan and, generally, with PPG3. He went on to state, however, that the need rested mainly upon the structure plan housing requirement and that the application site was allocated in order to meet this, and that:

“185. Housing land supply was exhaustively examined by the local plan inquiry Inspector, who had compendious, borough-wide evidence before him, including information on all potential housing sites. Although the local plan inquiry took place in 1998, the evidence to this inquiry, which is not challenged by any party, is that the Inspector's conclusions still obtain. There has been no significant change in circumstances to render them out of date.

186. I therefore accept his conclusion that the structure plan housing requirement cannot be met without allocating some greenfield sites, including the application site. This is underlined by the Council's current calculations of housing land supply, which, reasonably measured against a structure plan requirement which includes the so-called reserve, show a small shortfall. (While the applicants suggested that the Council may have over-estimated the current supply, leading to a larger shortfall, I am reasonably satisfied with the Council's housing supply figures as given in Mr Burt's evidence.)

187. That said, the inquiry did not attempt an up-to-date re-run of the local plan inquiry housing round table. Figures given in evidence represent a snap-shot at one point in time, and will soon be superseded. Suffice it to say that, in the absence of sequentially preferable alternatives, I accept that the application site is needed to help meet the Council's housing requirement.”

11. Mr Burt had explained in his evidence for the council that the housing land supply position could be calculated in three ways, using (i) the deposited structure plan (his Table 1), (ii) the adopted structure plan without the reserve provision, i.e. by reference only to the baseline provision (his Table 2, as corrected at the inquiry) and (iii) the adopted structure plan with the reserve provision (his Table 3). Although the total provision for housing in the remaining period to 2006 exceeded the strategic requirement on basis (i) and (ii), there was a significant shortfall on basis (iii), upon which the council relied. Pelham generally supported the council's case but took the view that the council's calculations of housing supply might be too optimistic, for reasons explained in a supplementary proof of Mr Newlyn for Pelham. On the basis of Mr Newlyn's figures, there would be a shortfall sufficient to justify the release of the Pelham site on any of bases (i) to (iii), not just on basis (iii). That was put forward as strengthening the case for release of the Pelham site. The inspector, however, in the passage quoted above, accepted the council's approach.
12. By letter dated 16 July 2001, signed by Mr Darren Richards, an official in the Government Office for the South East ("GOSE"), the parties to the Pelham inquiry were informed that the Secretary of State had considered the inspector's report on the Pelham application but took the view that he required further evidence from the parties on several key issues before he could reach a decision on the application. One of those issues concerned housing land supply:

“On 22 March 2001, since the close of the inquiry, Regional Planning Guidance for the South East (RPG9) has been published. The Secretary of State considers that this guidance raises major issues in the consideration of the present application particularly relating to housing land supply. The Secretary of State notes that both the applicant and the local planning authority justify the need for this development by relying on the housing land supply calculation that shows a shortfall. This calculation includes the 'reserve provision' set out in policy H4 of the Structure Plan, which is only to be released in the light of the revised RPG9. However, policy H4 also states that 'the strategic authorities will only support the release of individual greenfield allocations to meet the reserve provision where monitoring of the Structure Plans and Local Plans indicates that there is a compelling justification to do so'. The Secretary of State would welcome further representations from the parties as to why the reserve provision should be included in the calculation.”

13. In September 2001 Pelham submitted further evidence from Mr Newlyn in response to GOSE's letter of 16 July. It was to the effect that Pelham had not relied on the reserve provision to demonstrate a housing shortfall; its case at the inquiry (as already indicated above) had been that the Pelham development was needed to meet the baseline housing requirement in the structure plan, Mr Newlyn having sought in his supplementary evidence to demonstrate a shortfall on the baseline provision identified in Mr Burt's Table 2. In commenting on constraints affecting the availability of housing sites, Mr Newlyn stated in his further evidence:

“2.4 …. (ii) … The Local Plan allocations referred to in Table 6 sites 169 to 172 are constrained until released from the Green Fields Direction processes and should properly be deleted from the available housing supply as there is the possibility they could become reserve sites. Site 170 is the North Whiteley site the subject of this evidence and site 169 East of Botley is connected to site 170. Site 171 Peters Road is the subject of a planning application from Bovis Homes which has been resolved for approval subject to the views of GOSE. A letter was issued by GOSE on 21 July requiring further information on this application. The release of this development should properly also be constrained by the issues raised in the GOSE letter of 16th July. Site 172 Hunts Pond Road is affected by land ownership constraints and will also be subject to the processes of the Green Fields Direction in due course. These four sites amounting to 735 dwellings must be excluded from the housing supply until they are released from the Green Fields Direction.

….

2.6 In my supplementary evidence to the call-in inquiry I demonstrated a shortfall in the baseline approach (Table 2) of 216 dwellings. I am now confident this shortfall has increased to 554 dwellings at August 2001 due mainly to the constraints to the release of the local plan greenfield allocations at North Whiteley, East of Botley Road, Hunts Pond Road and Peters Road. The release of these four sites are affected by the issues raised in the GOSE letter of 16th July 2001.

2.7 The North Whiteley site is in a priority position for earlier release than Hunts Pond Road and Peters Road, which sites are still at the planning application stage and have yet to complete detailed consideration by GOSE in accordance with PPG3. The North Whiteley site would provide at least 180 dwellings towards the baseline housing shortfall of 554 dwellings.

2.8 I am certain that the above approach is the correct approach to take in determining whether the release of the North Whiteley site is appropriate at this stage ….”

14. In its own response to GOSE's letter of 16 July, the council stated that it did not justify the need for the development by relying on use of the reserve provision in policy H4 of the adopted structure plan. The main thrust of its evidence relating to land supply concerned the unacceptable reduction in annual dwelling completion rates that would result from a delay in the development of the North Whiteley site and the other large greenfield sites allocated in the adopted local plan. It is unnecessary to set out the detailed reasoning, but the following comments should be noted:

“12. There are currently no identified reasons to distinguish between the three greenfield allocations for over 150 dwellings in a way that would suggest any particular order of release. It should therefore be assumed that the sites at Peter's Road and Hunts Pond Road would not be released before the land North of Whiteley. A further one-year delay in the release of these three greenfield sites would increase the number of dwellings not expected to be developed until after 2006 to 453, 20% of the total large site supply. A two-year delay in the release of the greenfield sites would increase the number of dwellings not expected to be developed until after 2006 to 613, 34% of the total large site supply.

….

16. … The three greenfield sites need to be released to avoid development in the Borough continuing to fail to achieve the build rates required by the [structure plan] baseline provision.”

15. Laing played no part in the Pelham inquiry. Its own planning application in respect of the Laing site was made on 25 October 2000, only a few weeks before the Pelham inquiry. On 11 July 2001 the council resolved in principle to grant permission in respect of the Laing site, in accordance with a planning officer's report which concluded:

“Members will be aware that the findings of the North Whiteley Call-in Inquiry are presently awaited. There remains some uncertainty as to the approach the Secretary of State will take in terms of allocation, density and transportation measures.

Notwithstanding this, the site at Peters Road is more closely related to the existing urban framework than the North Whiteley call-in site. This fact was noted by the Local Plan Inspector ….”

16. The Secretary of State was notified of the Laing application and the council's resolution by letter of 19 July. A letter in reply from GOSE, dated 27 July, was signed by the same official, Mr Darren Richards, who had written on 16 July to the council and the other parties to the Pelham inquiry to request further evidence in respect of the Pelham application. The letter of 27 July requested further information, including more details of measures the council had taken to identify suitable brownfield sites in accordance with the presumption in PPG3 para 32 that previously developed sites should be developed before greenfield sites. It did not refer to GOSE's letter of 16 July to the parties to the Pelham inquiry or to the specific issues raised in that letter.
17. The council responded on 19 September to GOSE's letter of 27 July concerning the Laing application. Like the letter to which it was responding, the response made no reference to the correspondence concerning the Pelham application.
18. On 19 October the Secretary of State issued a holding direction in relation to the Laing application. On 31 October he called in the application. Both letters were again written by Mr Darren Richards of GOSE. Again no reference was made to the correspondence relating to the Pelham application. The call-in letter in respect of the Laing application stated that the matters about which the Secretary of State particularly wished to be informed included:

“(a) the relationship of the proposed development to the relevant policies and provisions of the development plan for the area, and whether any of these policies and provisions may be superseded by policies contained in PPG3;

(b) the relationship of the proposed development to national policy guidance in PPG3 'Housing', in particular

(c) the relationship of the proposed development to national policy guidance in PPG3 'Housing', in particular

(i) whether any necessary housing provision can be better met, in order of preference, by the re-use of previously developed land, urban extension or around nodes in good transport corridors elsewhere;

(ii) the proposal's relationships to each of the criteria in paragraph 31 and the presumption in paragraph 32 ….”

19. From this point, therefore, both the Pelham application and the Laing application were before the Secretary of State for decision by him on call-in. That the Secretary of State stepped in as decision-maker in relation to both applications and had them both before him at the same time, and handled by the same official, is something on which Laing places considerable weight in its present challenge.
20. On 2 January 2002 Mr David Hutchison, a planning consultant acting for Laing, had a telephone conversation with Mr Mike Ellis of GOSE about the progress of Laing's application and when a decision could be expected in respect of Pelham's application. According to Mr Hutchison, Mr Ellis told him during the conversation that the Secretary of State was presently considering whether or not the planning inquiry into Pelham's application would be re-opened and conjoined with the inquiry into Laing's application.
21. Mr Ellis's own recollection of the conversation, however, is different. He states that he informed Mr Hutchison that the Secretary of State had received the inspector's report on the Pelham application but had referred back to the parties for further information before he could reach a decision on the application. The further information had been received and was being considered. A request had been made by one of the parties to reopen the inquiry and that was one of the options being considered. In response to a question from Mr Hutchison as to whether consideration was being given to conjoining a reopened inquiry into Laing's application, Mr Ellis went on to say that if the Pelham inquiry were reopened consideration would be given to conjoining the reopened inquiry with the inquiry into the Laing application. Mr Ellis regarded this as a tentative enquiry in passing, rather than any formal request for conjoining. Further, what was being considered at the time of the telephone conversation was not conjoining the inquiries but whether the Secretary of State had sufficient information on the Pelham application or needed to reopen that inquiry. Consideration could be given to conjoining only after the first matter had been determined; and the reason for conjoining would have been purely administrative, i.e. a matter of convenience. In the event the Secretary of State decided that he had sufficient information to determine the Pelham application without reopening the inquiry and so the question of conjoining did not arise.
22. On 9 January 2002 the Secretary of State was served with the statements of case of Laing and the council in relation to the Laing application. Mr Forsdick, on behalf of the Secretary of State, informed me on instructions that the statements of case were sent to the Planning Inspectorate in Bristol, not to GOSE. That was not accepted by Mr Purchas QC on behalf of Laing, who referred me to the relevant regulations in support of his position. The point would be material only if I attached importance to the role of Mr Darren Richards as the official at GOSE responsible for handling the two applications. In the event, for reasons given later in this judgment, I do not attach such importance to his role and I therefore consider it unnecessary to pursue further the question whether Mr Richards received the statements of case at the material time.
23. In relation to the issues raised by the Secretary of State in the call-in letter as to the relationship of the development to the guidance in PPG3, the statement of case for Laing stated inter alia:

“4.3 A detailed justification will be presented in support of the local plan and development strategy proposed for this site. This exercise will also consider and compare the proposal with other potential alternative options including reference to the capacity of previously developed land within the urban area, and also other strategic options such as urban extensions, and concentration of development around nodes in good transport corridors. In light of the shortage of previously developed sites anticipated by the Local Plan Inspector, it will be argued that the local planning authority must rely on the next stage of the sequential approach involving appropriate, suitable urban extensions. It will be demonstrated that the application site is the most appropriate site within the Borough falling into this category.”

24. In its statement of case the council indicated that it would submit that it was necessary for the Peters Road site to be released to meet the baseline housing requirements of the structure plan. The evidence presented at the local plan inquiry would be summarised to demonstrate that the proposal satisfied PPG3 requirements and would be consistent with sustainable development policies. Reference would be made to the conclusions of the local plan inspector, including his finding that the proposed allocation at Peters Road was sustainable and that in terms of location he could see no site being better. The council would demonstrate that the proposals were consistent with the inspector's recommendations. In relation to paragraph (b) of the issues raised in the call-in letter, reference would be made to the Pelham application and inquiry; and in the event of the Secretary of State's decision being made by the time of the Laing inquiry, consideration would be given to any relevant issues and comments contained in the decision letter. The council would also demonstrate that the Laing site was an appropriate site for housing development in terms of its close location to existing services and facilities and that those had the potential to be accessed from the site by modes of transport other than the car.
25. On 6 February 2002 the Secretary of State made his decision on the Pelham application. The decision letter was again signed by Mr Darren Richards of GOSE. In paragraph 5 of the letter Secretary of State agreed with the inspector that the main issues were as stated in the call-in letter. In paragraph 7 he agreed that the council had done all they could to identify previously developed sites and that the Pelham site was "the next most sustainable option" (i.e. as an urban extension). His disagreement with the inspector's reasoning, though it did not result in disagreement with the inspector's conclusion, was contained in paragraphs 12-15:

“12. In relation to issue (e) the Secretary of State disagrees with the Inspector that the proposal necessarily accords with PPG3. Whilst the Secretary of State has agreed that the proposal is, or through the use of conditions will be, broadly consistent with those PPG3 matters identified above, he considers that PPG3 contains other advice against which the proposal should also be considered. Although he accepts that the proposal is in accordance with the development plan, he has also considered whether that Plan is consistent with PPG3. In this respect the Secretary of State disagrees with the Inspector that the Local Plan Inspector's conclusions still apply (IR 185). The Secretary of State considers that the publication of the final version of PPG3 just before the adoption of the local plan represents a significant change in circumstances, the implications of which should be considered.

….

14. The Secretary of State notes that in calculating the housing requirement for the Borough the Inspector favoured using the Structure Plan reserve provision. The Secretary of State disagrees with this, and considers that until the provisions of the Structure Plan policy H4 are implemented by the strategic authorities then the Borough's requirement should be based on the baseline provision. Using this approach shows a large surplus of housing supply, in contrast with the Inspector's finding of a small shortfall (IR 186). Following the advice in PPG3 set out above, the Secretary of State would expect local authorities who are faced with a surplus of allocated greenfield sites to firstly review the need for such sites and, if it is determined that such sites are required, to manage their release over the plan period. In the Secretary of State's view the policy in PPG3 could justify the refusal of a greenfield site where it had not been allocated according to a sequential approach. This would help implement the Government's policy that previously-developed sites should be developed before greenfield sites.

15. However, in relation to this proposal the Secretary of State notes that a significant proportion of the Borough's estimated housing supply has yet to receive planning permission. He calculates that the supply from permitted sites will be insufficient to meet the Borough's housing requirement and will lead to a shortfall of approximately 300 dwellings. He has considered whether this shortfall could be reduced through the identification of new sources of capacity in the forthcoming urban capacity study. After considering the further information provided by the parties he concludes that this is unlikely. The Secretary of State therefore concludes that in order to meet the Borough's housing requirements the development of an allocated greenfield site is necessary. The proposal site is considered sustainable and in the absence of any sequentially preferable alternatives the Secretary of State agrees with the Inspector that it should be released for development.”

26. Underlying Laing's challenge to that decision is its concern that, on the reasoning in the decision letter, it was being said for the first time that the need justified the release of only one of the allocated greenfield sites; and that, by granting permission on the Pelham application while the Laing application was still outstanding, the Secretary of State had effectively determined that the site to be released should be the Pelham site rather than the Laing site.
27. The Secretary of State's actual position on the Laing application is not known. The public inquiry into the Laing application took place in June 2002 but no decision has yet been made.

The case for Laing

28. Mr Robin Purchas QC, for Laing, developed submissions by reference to five main issues. On the first issue his submission was that the Secretary of State, in determining the Pelham application, erred in failing to consider the availability and suitability of the Laing site. Failure to have regard to a material consideration is a breach of statutory duty (see ss.54A and 70 of the 1990 Act). It is for the decision-maker to decide, subject to review on conventional Wednesbury principles, what is in fact material to his decision. In the circumstances of this case, given the requirements of PPG3 and the approach taken by the Secretary of State, he was bound to treat the availability and comparative merits of the Laing site as a material planning consideration to be taken into account in his decision whether to release the Pelham site. In relation to this submission Mr Purchas referred in particular to Trusthouse Forte Hotels Ltd v. Secretary of State for the Environment (1986) 53 P&CR 293, Secretary of State for the Environment v. Edwards (1994) 69 P&CR 607 and R (Scott Jones) v. North Warwickshire Borough Council [2001] 2 PLR 59.
29. On the second main issue Mr Purchas's submission was that, assuming the availability of the Laing site to be a material planning consideration, it was incumbent on the Secretary of State to undertake a comparative assessment of the two sites, for that purpose either hearing evidence on the issue in the context of the Pelham application or delaying a decision on the Pelham application until the Laing application had been heard and then considering both applications simultaneously, or at the very least seeking representations in that respect. Mr Purchas distinguished Asda Stores Ltd v. Secretary of State for Scotland [1997] PLCR 233. He submitted that the Laing call-in letter, in particular by its references to PPG3 in paragraph (c) of the issues, demonstrated the Secretary of State's view of the materiality and importance of criteria within PPG3 that should inform his consideration of these applications; and that the proper application of PPG3, the findings at paragraph 15 of the Pelham decision letter and the requirements of fairness all demanded a proper comparative assessment of the sites, particularly in circumstances where the Secretary of State's conclusion permitted scope for only one of the two competing sites to be permitted.
30. The submission on the third main issue was that the Secretary of State acted unfairly in failing properly to consider the merits of the Laing site or to afford Laing a proper opportunity of being heard before a decision was made on the Pelham application. Stress was placed on the identity of Mr Darren Richards as an official involved in the handling of both applications. It was submitted that the relevant correspondence in the Pelham application should have been copied to Laing or that the issue should have been drawn to Laing's attention. The Secretary of State could have raised the issue for consideration and have had regard to the competing merits (i) when deciding on the call-in of the Laing application, (ii) when considering whether to reopen the Pelham inquiry and (iii) after receipt of the statements of case for Laing and the council in support of the Laing application. Yet apparently he did not consider this question at all; or, if he did carry out a comparative exercise, he failed to afford Laing a meaningful hearing on it. He thereby acted in breach of a reasonable expectation that he would deal with matters fairly. For the relevant principles, Mr Purchas referred to R v. North & East Devon Health Authority, ex p. Coughlan [2001] QB 213 and R v. National Lottery Commission, ex p. Camelot [2001] EMLR 43. He also cited Lakin Ltd v. Secretary of State for Scotland [1988] SLT 780.
31. As to the fourth main issue, Mr Purchas submitted that the Secretary of State failed properly to understand and apply the policy requirements of PPG3, in particular the criteria for prioritising qualifying sites as set out in paragraph 31 of PPG3. Having carried out the broad sequential test referred to in paragraphs 29-30, the Secretary of State was required to prioritise between residual competing and available sites by assessing their potential and suitability for development according to, among others, the following material criteria contained in paragraph 31: location, accessibility and sustainability; the capacity of existing infrastructure; the ability to build communities; and physical and environmental constraints. There was ample evidence before him, including material indicating the sustainability of the Laing site, to show that there was a serious issue to be determined. Yet he failed to determine it.
32. The fifth main issue involved an alternative submission that the Secretary of State failed to give adequate reasons for his decision and that Laing has been materially prejudiced by such failure.

The case for the Secretary of State

33. For the Secretary of State, Mr Forsdick submitted first that the issue of a comparative exercise was not raised before the inspector or the Secretary of State and that it is too late to raise it for the first time now on a s.288 application. Laing did not intervene in the Pelham application and did not suggest that a comparative exercise was required. Laing did not seek to do so even after December 2001 when, as the evidence shows, the Secretary of State's letter of 16 July 2001 requesting further information in respect of the housing land supply issue came to the attention of Laing's planning consultant, Mr Hutchison. It did not seek to do so even in its own application; but in any event these are matters that should have been raised squarely in the Pelham application if they are to be relied on as grounds of challenge to the Pelham decision. The court is astute to stop claimants raising points which could and should have been raised below but were not so raised. The Secretary of State is not required to deal with such issues; a person who could and should have raised such issues cannot be aggrieved by the Secretary of State not dealing with them; and/or section 288 does not provide a mechanism for quashing a decision on the basis of matters not raised before the decision-maker. Mr Forsdick referred to Rhodes v. Minister of Housing and Local Government [1963] 1 WLR 208, St James Homes Ltd_v. Secretary of State for the Environment, Transport and the Regions [2001] JPL 1110, Beach v. Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 381, [2002] JPL 185, Tower Hamlets v. Secretary of State for the Environment [1994] JPL 112 and R (Newsmith Stainless Ltd) v. Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74.
34. It was submitted secondly that the Secretary of State was under no obligation to undertake a comparative assessment in the circumstances of the case. This was not a case that called for such an exercise on the principles laid down in Secretary of State for the Environment v. Edwards (1994) 69 P&CR 607 and R (Scott Jones) v. North Warwickshire Borough Council. It was not a case of competing applications and, given the background of the site's allocation under the local plan and the findings of the inspector and of the Secretary of State, it was impossible to find that the Pelham development involved conspicuous adverse effects which the Laing development lacked, such as to make the Laing development a possible alternative which the Secretary of State was bound to take into account as a material planning consideration.
35. Mr Forsdick submitted thirdly that the construction that Mr Purchas sought to place on the Laing call-in letter was simply wrong. Paragraph (c)(i) of the issues identified in the letter was not raising the question of a comparative assessment but was paraphrasing PPG3 paragraph 30, which did not require such an assessment.
36. The construction of PPG3 itself was the subject of Mr Forsdick's fourth submission. Borrowing in advance from the skeleton argument of Mr Corner QC for Pelham, he submitted that PPG3 does not require the comparative exercise contended for by Laing and that in any event the Secretary of State's interpretation of the guidance is subject only to a Wednesbury challenge (see R v. Derbyshire County Council, ex p. Woods [1997] JPL 958) and the Secretary of State was reasonably entitled to interpret PPG3 in that way. In particular, PPG3 paragraph 30 lays down a sequential approach, starting with the re-use of previously developed land and buildings within urban areas, then urban extensions, and finally new development around nodes in good public transport corridors. The Pelham and Laing sites are in the same category within the sequential approach, namely greenfield urban extensions. The comparative merits of these and other sites were considered at the time of establishing allocations under the local plan. When subsequently considering individual applications, neither the sequential approach nor any other part of PPG3 requires a competition between sites within the same category. Thus it cannot be said that the Secretary of State misinterpreted PPG3 or adopted an erroneous approach.
37. By way of residual submissions meeting other points advanced on behalf of Laing, Mr Forsdick submitted that there was no unfairness to Laing in this case. Laing was not, or should not have been, taken by surprise, since it knew of the correspondence between the Secretary of State and the parties to the Pelham inquiry and did not raise any issue with the Secretary of State. Further, and as an alternative way of putting points advanced under the first main submission, as a matter of discretion the court should not permit Laing to raise such issues for the first time on a s.288 challenge to the Pelham decision.

The case for Pelham

38. For Pelham, Mr Corner QC adopted the submissions made on behalf of the Secretary of State, including the submissions concerning Laing's failure to raise the issue before the inspector or Secretary of State. On the facts Mr Corner submitted that the material before the Secretary of State on the Pelham application did not suggest that the Laing site might be preferable to the Pelham site and the Secretary of State was not asked to consider the issue in the context of the Pelham application. In any event, if and in so far as the issue was raised at all, it was done so vestigially as not to make it a principal controversial issue with which the Secretary of State was required to deal in his reasons. Moreover there was no objection by Laing to the Pelham application and no suggestion that it would have such adverse effects that the possibility of alternative sites lacking such adverse effects ought to be considered. Laing must have known that the determination of the Pelham application might affect its interests: it should have been obvious that debate on allocated greenfield sites might affect Laing, and on the facts it was reasonably to be anticipated that the Secretary of State might conclude that there was a shortfall requiring the development of only one of the allocated sites.
39. In relation to the first issue raised by Mr Purchas, Mr Corner submitted that on the authorities the Secretary of State was not required to consider the Laing site as a possible alternative. There had been no suggestion by Laing that the Pelham site had such conspicuous adverse effects that the possibility of an alternative site ought to be considered, and on the inspector's findings there was no basis for such a conclusion.
40. Mr Corner submitted that the second issue added nothing and did not need to be separately addressed.
41. As to the third issue, Mr Corner relied on the submissions advanced by Mr Forsdick. To the extent that Laing advanced a legitimate expectation to be treated fairly, it added nothing to the basic duty to act fairly; and it was plainly not unfair for the Secretary of State to act as he did if he was under no duty to carry out a comparative exercise.
42. On the fourth issue, Mr Corner again relied on Mr Forsdick's submissions, contending that the Secretary of State's interpretation of PPG3 could not be said to have been perverse and that PPG3 paragraph 38, in particular, suggests a comparison with previously developed land (the higher category in the search sequence) and not a comparison between greenfield sites.
43. In relation to the fifth issue, Mr Corner submitted that no defect in the Secretary of State's reasoning has been shown and that Laing has in any event suffered no prejudice from the alleged lack of reasons. The Secretary of State made no adverse finding about the merits of the Laing site. What he said about housing supply was said on the basis of particular evidence in a particular case and does not prevent Laing from addressing the issue and putting forward its own evidence at the Laing inquiry with a view to persuading the Secretary of State to adopt a different position in respect of the Laing application.

Conclusions

44. In my judgment it is clear that the Secretary of State, in determining the Pelham application, did not have regard to the availability or suitability of the Laing site or carry out a comparative assessment between the Pelham site and the Laing site.
45. I think it equally clear that he was not asked to have such regard to the Laing site or to carry out such a comparative assessment. There was no suggestion from any of the parties to the Pelham inquiry that a comparison with the Laing site was or might be necessary or appropriate. Thus I reject Mr Purchas's contention that the responses to GOSE's letter of 16 July 2001 raised the issue. In particular, when Pelham's response (paragraph 2.7 of Mr Newlyn's further evidence) referred to Pelham's "priority position", it was merely making an accurate chronological point; and the council (paragraph 12 of its submission) said only that there were no identified reasons to distinguish between the three allocated sites in a way that would suggest any particular order of release, and pointed to the need to release sites to meet the shortfall. All of that was far removed from suggesting that the Secretary of State should undertake a comparative assessment of the sites.
46. Laing itself played no part in the Pelham inquiry and did not at any time suggest that a comparison with its site was or might be necessary or appropriate for the purposes of the Pelham decision. To the extent that an issue of comparison was raised at all by Laing (see last sentence of para 4.3 of its statement of case following the Laing call-in), it was raised only in the context of the Laing application and in terms that did not turn it into an issue for consideration by the Secretary of State, let alone a principal controversial issue, in his determination of the Pelham application. There was no cross-reference to the Pelham application and no suggestion that the Secretary of State needed to consider the issue in relation to the Pelham application or to hold up his decision on that application pending consideration of the Laing application.
47. None of the other material before the Secretary of State, including the report of the local plan inspector, raised a comparison between the sites as an issue for consideration or even suggested that one site should be favoured over the other.
48. Further, there is nothing to show that the Secretary of State was at any material time considering the possibility of a comparison between the Pelham site and the Laing site. I reject Mr Purchas's submission that the terms of the Laing call-in letter raised an issue of comparative assessment or suggested that the Secretary of State was thinking in terms of such an assessment. Mr Purchas submitted in particular that the effect of paragraph (c)(i) of the call-in letter was to raise as an issue whether the housing requirement could be better met by another urban extension site; and that once the Secretary of State had identified that issue in relation to the Laing application it was perverse of him not to treat it as a material consideration in relation to the Pelham application. In my judgment, however, the relevant passage of the call-in letter is not to be read as raising such an issue. It is simply a reflection of the relevant paragraphs of PPG3, albeit in expanded form as compared with the terms of the Pelham call-in letter; and, as explained below, the Secretary of State did not regard PPG3 as requiring a comparison between sites in the same category of greenfield urban extensions and he was entitled to take that view of the guidance.
49. As to the telephone exchange between Mr Hutchison and Mr Ellis on 2 January 2002, I have no basis for rejecting Mr Ellis's evidence that the Secretary of State was not considering whether to conjoin the inquiries but was merely considering whether to reopen the Pelham inquiry. Any question of conjoinder would have been considered only if the Pelham had been reopened, and then only for reasons of administrative convenience. In the event it was decided not to reopen the Pelham inquiry and the question of conjoinder did not arise. Thus the references to the possibility of conjoinder cannot found an inference that the Secretary of State was considering a comparative assessment.
50. Looking at the matter more generally, I take the view that the Secretary of State was plainly not required, on the material before him, to consider the availability and suitability of the Laing site or to undertake a comparative assessment. The relevant principles can be taken from the judgment of Laws LJ in R (Scott Jones) v. North Warwickshire Borough Council:

“22. As I foreshadowed, a number of authorities have been cited, of which the latest in time is the decision of Simon Brown J (as he then was) in Trusthouse Forte Hotels Ltd v. Secretary of State for the Environment (1986) 53 P&CR 293. The learned judge there had regard to earlier authority and said at p.299:

'These authorities in my judgment establish the following principles:

(1) Land (irrespective of whether it is owned by the applicant for planning permission) may be developed in any way that is acceptable for planning purposes. The fact that other land exists (whether or not in the applicant's ownership) upon which the development would be yet more acceptable for planning purposes would not justify the refusal of planning permission upon the application site.

(2) Where, however, there are clear planning objections to development upon a particular site then it may well be relevant and indeed necessary to consider whether there is a more appropriate alternative site elsewhere. This is particularly so when the development is bound to have significant adverse effects and where the major argument advanced in support of the application is that the need for the development outweighs the planning disadvantages inherent in it.

(3) Instances of this type of case are developments, whether of national or regional importance, such as airports … coal-mining, petrochemical plants, nuclear power stations and gypsy encampments.'

23. There is then a reference in parenthesis to authority. The learned judge continues:

'Oliver LJ's judgment in Greater London Council v. Secretary of State for the Environment and London Docklands Development Corporation and Cablecross Projects Ltd suggests a helpful although expressly not exhaustive approach to the problem of determining whether consideration of the alternative sites is material:

… comparability is appropriate generally to cases having the following characteristics: First of all, the presence of a clear public convenience, or advantage, in the proposal under consideration; secondly, the existence of inevitable adverse effects or disadvantages to the public or to some section of the public in the proposal; thirdly, the existence of an alternative site for the same project which would not have those effects, or would not have them to the same extent; and fourthly, a situation in which there can only be one permission granted for such development or at least only a very limited number of permissions

24. Then, at no. (4) in Simon Brown J's judgment:

'(4) In contrast to the situations envisaged above are cases where development permission is being sought for dwelling houses, offices (see the GLC case itself) and superstores (at least in the circumstances of R v. Carlisle City Council v. Secretary of State for the Environment, ex parte Cumbrian Cooperative Society Ltd).

(5) There may be cases where, even although they contain the characteristics referred to above, nevertheless it could properly be regarded as unnecessary to go into questions of comparability. This would be so particularly if the environmental impact was relatively slight and the planning objections were not especially strong …'

and examples concerning sewage treatment works are given.

….

26. With great deference, this is a very useful summary, and it is unnecessary to delve very much further into the other cases. Simon Brown J incorporated what had been said by Oliver LJ in GLC.

27. I note, by way of emphasis, only the observation of Paul J in Rhodes v. Minister of Housing and Local Government [1963] 1 WLR 208 ….

….

29. I will content myself, last, with referring only to the comment of Woolf J (as he then was) in Vale of Glamorgan Borough Council v. Secretary of State for Wales [1986] JPL 198 ….

30. If I may so, with respect, it seems to me that all these materials broadly point to a general proposition, which is that consideration of alternative sites would be relevant to a planning application only in exceptional circumstances. Generally speaking - and I lay down no fixed rule, any more than did Oliver LJ or Simon Brown J - such circumstances will particularly arise where the proposed development, although desirable in itself, involves, on the site proposed, such conspicuous adverse effects that the possibility of an alternative site lacking such drawbacks necessarily becomes, in the mind of a reasonable local authority, a relevant planning consideration upon the application in question.”

51. Mr Purchas submitted that the present case fell within Simon Brown J's principle no.(2), in that the Pelham application, for development on a greenfield site, had significant adverse effects and the major argument advanced in support of the application was that the need for the development outweighed the planning disadvantages inherent in it; and that consideration of alternative sites was material in accordance with the approach suggested by Oliver LJ, since inter alia there existed an alternative site which was claimed to be a more appropriate site and the situation was one in which only one permission could be granted.
52. In my view, however, that is to adopt a wholly unrealistic view of the present case, which seems to me to fall far short of an exceptional case in which consideration of alternative sites is required. The Pelham site, although a greenfield site, had been allocated for development under the local plan and was found by the inspector to meet the conditions for an urban extension in PPG3 paragraph 67; and I doubt very much whether residential development on it could be said in the circumstances to have, in the words of Laws LJ, "such conspicuous adverse effects that the possibility of an alternative site lacking such drawbacks necessarily itself becomes … a relevant planning consideration". But even if it did have such adverse effects by virtue of being a greenfield site, there was no possibility of the Laing site representing an alternative without such drawbacks, since in the material respect the Laing site, as another greenfield urban extension, had exactly the same drawbacks as the Pelham site, whatever advantages of detail might be claimed for it. I take into account that no fixed rule was being propounded by Laws LJ, any more than in other authorities cited. Standing back, however, and looking at the present case in the light of the principles laid down, I am satisfied that it is not one in which a reasonable decision-maker had necessarily to have regard to alternative sites as a material planning consideration.
53. For completeness I should mention that in my judgment Secretary of State for the Environment v. Edwards does not give Laing the assistance that Mr Purchas sought to derive from it. It is an application of the principles from the Trusthouse Forte and GLC cases that were endorsed in R (Scott Jones) v. North Warwickshire Borough Council. The case concerned an application for planning permission for a motorway service area in circumstances where the there had been seven such applications in respect of different sites, all of which had been refused by the local planning authority and four of which were the subject of appeals to the Secretary of State. An inspector's decision granting planning permission for one of the proposals (the RDL proposal) was challenged successfully on the basis of a failure to take into account the planning merits of the claimant's proposal. Mr Purchas placed particular emphasis on the concluding passage of the judgment of Roch LJ (p.616):

“Crucial in this case, in my judgment, was the fact there were not merely alternative sites, but those sites had been the subject of planning applications and were, in the case of three other applicants, the subject of appeals to the Secretary of State. These other sites were material planning considerations in the circumstances in this case, account of which would have created a real possibility that the Inspector's decisions in the RDL appeal would have been different.”

54. Those observations must, however, be read in context. In that case there were plainly competing applications, which was not the position here; and the mere fact that, by reason of the call-ins, the Pelham and Laing applications were both before the Secretary of State was not enough to make it necessary for the Secretary of State, in reaching a decision on one, to consider the other as a possible alternative. Moreover it was held on the facts in Edwards that there existed inevitable adverse effects or disadvantages to the public: "It is simply not acceptable to construct service areas in open countryside unless there is a need for such service areas" (per Roch LJ at 615). It was also held that there could be no dispute as to the existence of an alternative site for the same project which might have a lesser adverse effect on the countryside or as to a situation in which there could be only one permission or a limited number of permissions for such development (ibid.). For the reasons already given, in my view the present case lacks those key features.
55. I should also make clear that, if consideration of alternative sites was not a necessary consideration, Laing cannot succeed on this issue since, as Mr Purchas accepted, its case here depends on the Secretary of State having been required to take the consideration into account, not on its being a consideration that the Secretary of State could have regarded as a possible material planning consideration.
56. It follows from the above that I reject Laing's case on the first main issue. The case on the second main issue is closely related to, and dependent upon, the first and likewise falls to be rejected. In the circumstances it is unnecessary to deal with Asda Stores Ltd v. Secretary of State for Scotland [1997] PLCR 233.
57. I think it sensible to consider next Mr Purchas's fourth main issue, i.e. whether PPG3 required the Secretary of State to undertake a comparative assessment of the two sites. The clear inference from the Pelham decision letter and other material before me is that the Secretary of State did not consider PPG3 to require a comparative assessment. As Mr Forsdick and Mr Corner submitted, the court can intervene only if such an interpretation of the guidance was perverse or otherwise bad in law: see R v. Derbyshire County Council, ex p. Woods [1997] JPL 958.
58. Paragraphs 28 to 31 of PPG3 fall under the heading "identifying areas and sites". Paragraph 28 provides that RPG and development plans should provide clear guidance as to the location of new development so that it meets housing requirements in the most sustainable way. At the local level, local plans and UDPs should identify sites for housing and buildings for conversion and re-use sufficient to meet housing requirements after making an allowance for windfalls, and manage the release of land over the plan period. The guidance continues:

“28. Local planning authorities in preparing development plans should adopt a systematic approach to assessing the development potential of sites, and the redevelopment potential of existing buildings, deciding which are most suitable for housing development and the sequence in which development should take place.

29. In identifying sites to be allocated for housing in local plans and UDPs, local planning authorities should follow a search sequence, starting with the re-use of previously-developed land and buildings within urban areas identified by the urban housing capacity study, then urban extensions, and finally new development around nodes in good public transport corridors. They should seek only to identify sufficient land to meet the housing requirement set as a result of the RPG and strategic planning processes. In doing so they do not need to consider all the land in their area: they should not extend the search further than required to provide sufficient capacity to meet the agreed housing requirement.

31. In deciding which sites to allocate for housing in local plans and UDPs, local planning authorities should assess their potential and suitability for development against each of the following criteria: …. [availability of previously developed sites; location and accessibility; capacity of existing and potential infrastructure; ability to build communities; and physical and environmental constraints on development of land].”

59. The following section of the guidance, under the heading "allocating and releasing land for development", provides inter alia:

“32. In determining the order in which sites identified in accordance with the criteria set out in paragraphs 30 and 31 should be developed, the presumption will be that previously-developed sites (or buildings for re-use or conversion) should be developed before greenfield sites ….

33. Local plans and UDPs should include policies for the release of sites for housing development according to the order of priority set out in the first sentence of paragraph 32 ….”

60. A later section is concerned with "determining planning applications". It provides inter alia:

“37. Development plans form the framework within which decisions on proposals for development are taken. It is important that plans are kept up to date and properly reflect national policy guidance. Local planning authorities should revise their plans to take account of the guidance set out in this PPG: they should seek to do so as quickly as possible by incorporating revised policies and proposals either in replacement plans or by alteration of existing housing policies.

38. In considering planning applications for housing development in the interim, before development plans can be reviewed, local authorities should have regard to the policy contained in this PPG as material considerations which may supersede the policies in their plan …. Where the planning application relates to development of a greenfield site allocated for housing in an adopted local plan or UDP, it should be assessed, and a decision made on the application, in the light of the policies set out in this guidance. Comparison with previously-developed sites against the criteria in paragraph 31 and in the light of the presumption in paragraph 32 and the policies on design, layout and efficient use of land, including car parking, will be particularly relevant ….”

61. Reference has also been made to paragraph 67, under the heading "creating urban extensions":

“67. Planned extensions to existing urban areas are likely to prove the next most sustainable option after building on appropriate sites within urban areas, especially where it is possible to utilise existing physical and social infrastructure, there is good access to public transport (or where new public transport provision can be planned into the development), and there is good access to jobs, schools, shopping and leisure facilities.”

62. Mr Purchas submitted that since the greenfield sites allocated under the local plan were in excess of the requirement identified by the Secretary of State in the Pelham decision letter, PPG3 required him to determine the order of release of those sites and for that purpose to carry out a comparative assessment of the Pelham site and the Laing site by reference to the policies in the guidance. In particular, paragraph 38 required him to consider the particular application in the light of the policies; and on the proper interpretation of PPG3 that involved not simply the application of the search sequence and a comparison with any previously-developed sites, but a comparison between urban extensions themselves by reference to the criteria in paragraph 31.
63. I prefer the submissions made on this issue by Mr Forsdick and Mr Corner, to the effect that PPG3 requires no such comparative assessment between urban extensions. Although the allocation of a greenfield site in a local plan adopted before the relevant version of PPG3 was issued is not determinative and the application for permission in respect of such a site must be assessed in the light of the policies in PPG3, the thrust of those policies is to require the search sequence to be applied and in particular for a comparison to be made between the allocated greenfield site and any sites in a higher search sequence category. It does not require a comparison with other greenfield sites in the same search sequence category. Paragraph 38 may not be exhaustive but does provide clear support for that view. Nothing in the other paragraphs of the guidance precludes it.
64. In any event the Secretary of State was reasonably entitled to interpret his guidance in that way. It cannot be said that such an interpretation was perverse or otherwise bad in law. I therefore reject Laing's case on the fourth main issue.
65. I turn to consider the third main issue, namely fairness. My first observation is that if Laing was taken by surprise by the Secretary of State's decision letter, it should not have been and in any event cannot reasonably complain about what happened. Whether there was a shortfall justifying release of the allocated greenfield sites was an issue flagged up in the evidence at the Pelham inquiry, which was available to and known to Laing. It should have been evident that release of any of the sites depended upon the housing requirement and that reliance on the reserve provision was an uncertain basis for release of any of them. Policy H4 of the structure plan, which was clearly in play before the inspector, provides that "the strategic planning authorities will only support the release of individual greenfield allocations to meet this reserve provision where monitoring of the Structure Plan and Local Plans indicates there is a compelling justification to do so". Yet the justification put forward by the council appeared to be based on the reserve; and although Pelham was putting forward figures that showed a shortfall even by reference to the baseline provision, i.e. without the reserve, there could be no certainty that they would be accepted. Moreover even the figures put forward by Pelham (in the supplementary evidence of Mr Newlyn) had inherent in them the possibility of a finding of a shortfall sufficient to justify the release of only one of the allocated sites. It is true that none of the parties to the inquiry was actually arguing in favour of the release of only one of the sites. But in the light of the evidence and the issues to which it was directed, Laing cannot reasonably claim to have had no reason to believe that the outcome of the Pelham application could have a bearing on the release of its own site. In my judgment the actual outcome was foreseeable if not foreseen, and Laing could and should have put forward a case at the time as to the correct approach or correct figures or as to the comparative advantages of Laing's site if there were found to be a requirement for only site.
66. The letter of 16 July 2001 from the Secretary of State to the parties to the Pelham inquiry related to an existing issue rather than raising a new issue. It highlighted the potential importance of the existing disagreement between Pelham and the council as to the calculation of a surplus or shortfall by reference to the baseline provision. In any event the letter came to the attention of Laing's planning consultant, Mr Hutchison, in December 2001. It is true that he learnt of it when providing advice to other clients. I also bear in the mind that, as I was informed by Mr Purchas, Mr Hutchison was only engaged by Laing on 16 December 2001. There is, however, nothing to show that he was unable thereafter to reveal the information to Laing or that his knowledge of it cannot properly be treated as Laing's knowledge. Indeed, his evidence to this court is not to the effect that Laing was unaware of the letter, but that the letter did not indicate that the Secretary of State was considering the release of only one site and there was no reason for Laing to be concerned. As to that, however, it is clear that the letter did raise the issue of housing supply and that the possibility of a finding of an insufficient shortfall to justify the release of all or any of the allocated sites was inherent in it. I note too that reference was made in the telephone conversation between Mr Hutchison and Mr Ellis in January 2002 to the Secretary of State's request for further information from the parties to the Pelham inquiry and to the provision of further information pursuant to that request; but Mr Hutchison did not ask for further details of the request or of the information provided.
67. In those circumstances Laing cannot properly complain that it remained in the dark about the Secretary of State's request for further information or that the appearance of the issue in the Secretary of State's decision letter and the Secretary of State's finding in relation to it came as a bolt from the blue.
68. Even if I were wrong about that I would hold that there was no unfairness in the way in which the Secretary of State dealt with the matter. In my judgment fairness did not require the Secretary of State to copy to Laing the correspondence between him and the parties to the Pelham inquiry (in which Laing had conspicuously refrained from any involvement) or to inform Laing of the issues raised in that correspondence. In circumstances where, as I have held, a comparative assessment was not called for in the determination of the Pelham application and that application fell to be determined on its own merits, it was not incumbent on the Secretary of State to inform Laing of issues relevant to that application. Call-in of the Laing application did not alter that position. Nor did the fact that the Secretary of State considered, but decided against, reopening the Pelham inquiry. Nor did receipt of the statements of case in the Laing application. The Secretary of State was entitled to look at the Laing application separately and subsequently, especially given that chronologically the Laing application was at all stages a substantial distance behind the Pelham application. Fairness would of course require the Secretary of State to draw Laing's attention, in the context of the Laing application, to issues relevant to the determination of that application. No complaint, however, is or could be made on that score: Laing has had a full opportunity to make representations on the relevant issues in the course of the public inquiry into the Laing application.
69. I also take the view that no significance is to be attached to the identity of Mr Darren Richards as an official at GOSE responsible for both the Pelham application and the Laing application. If fairness required Laing to be sent copies of correspondence relating to the Pelham inquiry or to be notified of issues raised in relation to the Pelham application, it did so even if different officials were responsible for handling the two applications at GOSE; and if fairness did not otherwise require the Secretary of State to send copies of the correspondence to Laing or to notify Laing of the issues, the fact that the same official was responsible for handling the two applications did not give rise to such a requirement.
70. I therefore reject the case as to unfairness and hold against Laing on the third main issue. For the purposes of my consideration of the issue I have not thought it necessary to cover specifically what was said in R v. North & East Devon Health Authority, ex p. Coughlan [2001] QB 213 or R v. National Lottery Commission, ex p. Camelot [2001] EMLR 43. In my judgment legitimate expectation adds nothing in this context to the ordinary duty to act fairly and nothing is to be gained from examining the particular application of the principles of fairness in the two cases: on the facts of the present case I am satisfied that there was no breach of the duty to act fairly. I also take the view that Lakin Ltd v. Secretary of State for Scotland [1988] SLT 780 is of no assistance. That was a case where the Secretary of State did carry out a comparative exercise, but in circumstances that involved unfairness to the petitioners. It is readily distinguishable from the present case.
71. As to the fifth main issue, I do not consider there to be any deficiency in the Secretary of State's reasons. It was not necessary for him to deal with the question of comparative assessment, which , as explained above, had not been raised as an issue, let alone a principal controversial issue, and which did not fall to be considered in the application of the relevant policy guidance. The actual reasoning is clear and sufficient. I also accept Mr Corner's submission that Laing has not been prejudiced by any deficiency of reasons in the Pelham decision, since Laing is able to make full representations in support of its own application and to receive a reasoned decision in the light of all the evidence relevant to that application. I therefore find against Laing on the fifth main issue too.
72. Those conclusions are sufficient to dispose of Laing's challenge. But since I was addressed at some length on whether it was open to Laing to bring this s.288 challenge at all, I propose to deal with that question too.
73. Laing's position is forensically very unattractive. Having played no part in the Pelham inquiry or in the post-inquiry consideration of the application, it now seeks to challenge the Secretary of State's decision and to do so on the basis of matters that were not raised by anyone before the inspector or the Secretary of State in the course of their consideration of the application. I have considerable sympathy for Mr Forsdick's submission that the court should be slow to entertain such a challenge. It is necessary, however, to examine carefully the various strands of authority to which Mr Forsdick referred.
74. The first of the cases cited by Mr Forsdick in support of his submissions on this issue was Rhodes v. Minister of Housing and Local Government [1963] 1 WLR 208. It was held in that case that the Minister ought to take into consideration any definite evidence on the availability or suitability of alternative sites, but was not required to do more than consider the evidence brought forward: it was not for him to "rout around" for other evidence. If objectors did not adduce the necessary evidence and left the matter vague, the Minister was entitled to say that the balance of facts actually proved or otherwise known to him was in favour of the applicants for planning permission.
75. That is plainly not a complete statement of principle. There may be circumstances in which proper use of a discretionary power requires the decision-maker to "rout around" for other evidence, i.e. to take steps to acquaint himself with all the relevant information to enable him to reach his decision: see Prest v. Secretary of State for Wales (1982) 81 LGR 193, though it is important to note that the point in issue in Prest had been raised with the Secretary of State by the applicants before he took the decision and that the court's attitude towards the extent of the Secretary of State's duty was plainly influenced by the fact that it was a CPO case involving compulsory deprivation of land. But apart from what was said in Prest about the fact-finding duty it is well established that in reaching a decision on a planning application the decision-maker may be required to consider relevant policies and other material planning considerations even where they are not drawn specifically to his attention. Thus in Cambridge City Council v. Secretary of State for the Environment [1992] JPL 644 it was stated by Glidewell LJ (at p.654) that:

“when determining an appeal under the planning legislation, an Inspector had a wider task than that of a judge determining a civil action. The Inspector had to consider what appeared to him to be 'material considerations', whether they had been canvassed by the parties or not. But there were limits to this duty. The Inspector was under no obligation to cast about, trying to think of every issue which might be relevant. The issues raised by the parties in their representations were a good indication of the matters they considered relevant ….”

76. So too in St James Homes Ltd v. Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 30, [2001] JPL 1110, Ouseley J stated:

“48. …. The nature of the decision-maker's duty under sections 54A and 70 of the 1990 Act requires him to consider the relevant Development Plan policies even when they are not specifically drawn to his attention. Those sections impose duties which are not discharged simply by considering what, in the case of an appeal, the parties may decide to rely on; the duties are cast on the decision-maker, who must fulfil them whatever assistance he may have had or lacked from the applicant or others ….

49. In the light of those statutory provisions the relevant policies of the Development Plan are in the first category of factors referred to by Glidewell LJ in Bolton Metropolitan Borough Council as ones to which the decision-maker is obliged to have regard and which are fundamental to his decision. Other material considerations may or may not fall within the first or second category depending on the circumstances of the case.

50. Of course there is considerable force in Mr Corner's submission that an Inspector cannot be expected to hunt around in the Development Plan for potentially relevant policies to which no one has drawn his attention, but that is not a conclusive answer for all circumstances. A policy may be directly in point, determinative of a case in the absence of other considerations; or it may be one of arguable weight or tangential applicability. Where a policy is not directly in point, it may well fall into the second category identified in Bolton Metropolitan Borough Council by Glidewell LJ, so that omission of its consideration, because it had not been raised, would involve no legal flaw. The court may also conclude that a Claimant cannot be aggrieved by a decision which fails to deal with a point which it did not raise, or a court may exercise a residual discretion against him.”

77. In the light of those authorities it is clear that the mere failure to raise a matter before the decision-maker is not always a bar to raising it by way of subsequent challenge to the decision. Thus in the present case, if PPG3 required the Secretary of State to have regard to the availability and suitability of the Laing site and to carry out a comparative assessment, his decision would be open to challenge even if his attention was not drawn to the issue at the time - especially since the correct application of PPG3 was an important issue, flagged up by the Secretary of State himself in the call-in letter. So too if, on the principles set out in R (Scott Jones) v. North Warwickshire Borough Council, consideration of alternative sites was a necessary planning consideration, the decision might be open to challenge for failure to consider it notwithstanding that the matter had not been drawn to the Secretary of State's attention at the time. Accordingly, the substantive challenge to the Secretary of State's decision in this case cannot in my view be disposed of simply on the ground that the matters were not raised before the decision was taken.
78. Is it, however, open to Laing to bring a challenge on such grounds when it played no previous part in the proceedings? As it seems to me, that must depend upon whether Laing can be said to be a "person aggrieved". On the meaning of "person aggrieved" I was referred to Times Investment Ltd v. Secretary of State for the Environment [1991] JPL 67, where Dillon LJ stated:

“However, the court was referred, among other authorities, to the decision in Turner v. Secretary of State for the Environment (1974) 28 P&CR 123 … where Ackner J summed up the earlier authorities and commented on the restrictive view of the meaning of 'person aggrieved' in some of the earlier authorities and on the extent to which a wider view had been suggested in later authorities He noted that an appeal could only be based on the very limited and restricted grounds stated in section 245 of the Town and Country Planning Act 1971 and went on to express the view that he could

'see good reason, so long as the grounds of appeal were restricted, for ensuring that any person who, in the ordinary sense of the word, was aggrieved by the decision, and certainly any person who had attended and made representations at the inquiry, should have the right to establish in the courts that the decision was bade in law because it was ultra vires or for some other good reason.'

Ackner J rejected the view that there was no jurisdiction in the court because he was obliged to impose a very restricted meaning on the words 'aggrieved person'.”

79. If the substantive challenge in the present case had been well founded, I would have been reluctant to shut Laing out on jurisdictional grounds. I see the force of Mr Purchas's submission that, if the decision was unlawful, no-one could be said to be more aggrieved by it than Laing. In any event I have focused above on the substantive grounds of challenge, but Laing's case also includes, of course, a challenge on grounds of procedural unfairness. If there had been procedural unfairness as alleged, then Laing was plainly aggrieved by it and should not be shut out from bringing the challenge.
80. There remains the question of discretion. In the passage I have quoted from St James Homes Ltd v. Secretary of State for the Environment, Transport and the Regions, Ouseley J referred to the possibility of exercising a residual discretion against a claimant. Mr Forsdick also cited a passage from the judgment of Sullivan J in R (Newsmith Stainless Ltd) v. Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74 to the effect that the court would rarely exercise its discretion to allow new material to be argued on a s.288 application; but the context in that case was very different, in that the claimant was seeking to reargue the planning merits of a decision, adducing for that purpose material that was not before the inspector. Suffice it to say that in the circumstances of this case I can see no proper basis for exercising a discretion to shut out Laing from bringing its challenge if it is a person aggrieved.
81. I should mention finally that Mr Forsdick also relied on Tower Hamlets v. Secretary of State for the Environment [1994] JPL 112 and Beach v. Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 381, [2002] JPL 185. Each of those cases involved a challenge on a point of law under s.289 to a decision of an inspector on an appeal against an enforcement notice. It was held in Tower Hamlets that the inspector was not under a duty to consider a matter that had not been raised on the appeal before him and that his failure to consider such matter did not therefore amount to a misdirection or error of law capable of founding a challenge to his decision. It was held in Beach that, since the point had not been raised before the inspector, there was no decision on the point that the claimant could challenge. In my view the reasoning in those cases cannot be transposed to the different circumstances of a challenge under s.288 to a decision to grant planning permission and the cases cannot provide a basis for shutting out Laing's challenge.
82. In conclusion, despite my expression of sympathy for Mr Forsdick's submission that the court should be slow to entertain a challenge in circumstances such as these, I cannot see a proper basis for declining to entertain it.
83. Accordingly I rest my decision on my consideration of the grounds of challenge actually advanced by Laing. For the reasons given earlier in this judgment, I find against Laing on all those grounds. Accordingly the claim is dismissed.