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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 >> Matthews, R (on the application of) v Tamworth Borough Council [2007] EWHC 3278 (Admin) (12 December 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/3278.html Cite as: [2007] EWHC 3278 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		12th December 2007

SIR MICHAEL HARRISON:

Introduction

1. This is an application under section 287 of the Town and Country Planning Act 1990 to quash part of the Tamworth Local Plan which was adopted by the defendant, Tamworth Borough Council, on 6th July 2006. The part of the Local Plan which the claimant seeks to quash consists of policy EMP1 and policy EMP2, together with the elements of the Proposals Map relating to policy EMP2.
2. The claimant is the owner of a greenfield site known as the Bonehill Road Extension site ("the Bonehill site") which was one of the sites allocated in policy EMP2 of the Revised Draft Local Plan for employment land with an area of 15 hectares. The other greenfield site also allocated in policy EMP2 was the Anker Valley site with an area of 27 hectares. Policy EMP1 of the Revised Draft Local Plan made provision for a total of 64.4 hectares of employment land, of which the Bonehill site formed part.
3. There was a public inquiry into objections to the Draft Revised Local Plan which was held between January and May 2005 by an Inspector whose report and recommendations were received by the Council in October 2005.
4. At the inquiry the Council supported the allocation of the Bonehill site and the Inspector, having considered the objections to the site, concluded that the allocation should be retained.
5. This application relates to what happened thereafter because, when the Council came to consider the Inspector's recommendations, it decided not to accept his recommendation relating to the Bonehill site. It decided to delete the Bonehill site and also the Anker Valley site. It decided to do so for a number of reasons, the main reason being that the site was not needed. It based that conclusion, in the main, on what the Inspector had said when dealing with employment land provision. It is necessary therefore to look with some care at what the Inspector said.

The Inspector's report

6. The Inspector dealt with general considerations relating to employment land provision in paragraphs 5.1.1 to 5.1.6 of his report. It is necessary to quote in full paragraphs 5.1.2 to 5.1.6:

"5.1.2 My approach has been to take the Structure Plan quantitative requirement as a starting point. That said, I consider that there is a sound basis for arguing that (in the particular circumstances of Tamworth) conformity with the SP can be achieved (as far as employment land is concerned) by provision which, ostensibly, is materially below the 120 ha level. I say 'ostensibly' here because I was told at the inquiry that in calculating the employment land provision for Tamworth no account was taken of any 'windfall' employment sites that come forward during the plan period; (contrast the position in relation to the housing land supply).

5.1.3 There are other reasons for thinking that conformity (in relation to employment land) can be achieved even if the SP figure is not entirely met. First, the SP itself says that emphasis is placed on the 'range and quality of land available rather than on the total level of provision'. It is true that in paragraph 6.14 of the SP it is also stated that '... the land allocation figures may be applied with some degree of flexibility but they should not be significantly exceeded of under-provided'. However, in my view, what is 'significant' has to be judged pragmatically, taking into account all relevant factors. Second, RSS Policy PA6C/D encourages a review of existing employment sites to establish their continued suitability for employment development. I regard that as particularly relevant if (a) there is serious doubt about the marketability of a site for Class B uses and (b) there is a good prospect of the site being used for another purpose which (whilst not in Class B) would nevertheless provide a worthwhile number of jobs. Third, there is overwhelming evidence, from take-up rates of employment land over a substantial period, that if the full 120 ha of land in Tamworth were made available, a considerable portion of it would not get used within the plan period. (There is a marked difference in my opinion between this situation and the situation in relation to housing land supply. In the case of housing, the problem is more likely to be a lack of housing sites to meet the demand than a lack of demand for any housing that may be provided.) Fourth - and this is linked to the third reason - there are substantial and attractive employment locations (for example at Birch Coppice) which are beyond, but very close to, the Borough's boundaries, and which can reasonably be expected to provide some jobs for Tamworth residents.

5.1.4 In summary, and assuming that the fundamental underlying objective of the SP policy is to provide an adequate number and range of job opportunities for Tamworth residents, an approach that resulted in a moderate shortfall below the 120 ha figure would not, in my view, be 'out of conformity' with the SP. I apply this approach in dealing with various objections to this Chapter of the Plan, and to the Chapter on Town Centre and Retailing.

5.1.5 The Employment Topic Paper (CD85) sets out the council's calculation of the employment land supply position as at 31 March 2004 (and allowing for the Pre-Inquiry Changes). It shows 114.6 ha of land as being 'made available' for the whole period 1996-2011. (As already mentioned, the council's figures make no allowance for 'windfall' employment sites.) My recommendations in response to objections would result in a reduction by a further 7.37 ha to 107.23 ha, making a total shortfall of 12.77 ha, below the 120 ha 'target', but still less than a 12% 'shortfall'.

5.1.6 The Topic Paper shows 90.5 ha in the categories of 'commitments', 'reallocated sites' and 'new employment sites'. On my recommendations that figure would reduce to 83.13 ha. On agreed historic take-up rates of around 3 ha per annum, that is a very generous supply. Even if, for the sake of illustration, it is assumed that half that land is not immediately available, or turns out to be unsuitable for some reason, that still leaves a supply that is more than ample for the remainder of the plan period. I conclude firmly that in the Tamworth context there would not be either (a) 'significant' under provision or (b) lack of 'conformity' with the SP."

7. The Council subsequently placed particular importance on paragraph 5.1.6 when deciding to delete the Bonehill site and other sites.
8. The Inspector dealt separately with the Bonehill site in paragraphs 5.5.1 to 5.5.8 of his report. It is only necessary to quote paragraph 5.5.3 where the Inspector stated:

"This site has better links with the strategic highway network than the Anker Valley site. For that reason the council considers it could be classed as 'sub-regional employment site' (using the terminology of RSS Policy PA6). The site does not currently fulfil the criterion in that policy relating to public transport (see above), but the broad description of the site as (potentially) a 'high quality attractive site' seems reasonable. I certainly think it has a greater chance than most other sites in Tamworth of attracting clients with an international/national/regional choice of location. That being so, I do not accept that it can simply be regarded as an 'equal alternative' to Anker Valley. It might serve a different part of the commercial premises market, and should be retained to enhance the 'range and choice' of available sites."

9. The Inspector then went on to consider some amenity objections to the site and concluded that the allocation should be retained.
10. In paragraph 5.6 of his report (which, by reference to paragraph 5.1.1, he reiterated when dealing with section 5.5 of his report), he dealt with a site known as the Coton Lane site, which he recommended should be deleted from the Plan, stating in paragraph 5.6.1:

"However, having regard particularly to the data on employment land take-up rates, I am sceptical about whether the site will be needed in this plan period. If it were deleted there would still be a sufficient supply overall, and also sufficient employment land in this 'category'. If this site were deleted, and even taking account of my recommendations on other employment sites, I am satisfied that, on reasonable analysis, the local plan would still be in general conformity with the SP."

11. Finally, so far as the Inspector's Report is concerned, the Inspector, in his letter to the Council accompanying his report, gave a summary of his conclusions on the main controversial issues. In dealing with employment land supply and the Coton Lane employment site, he stated:

"It was clear from the evidence that the full quantity of employment land that is required by the Structure Plan in Tamworth is very unlikely to be needed in this plan period. That is so, even when allowance is made for the importance of maintaining a range and choice of sites. In the circumstances of Tamworth, I am satisfied that a level of employment land provision that falls modestly short of the structure plan requirement would be perfectly acceptable. Partly with that conclusion in mind, I have recommended the deletion of the Coton Lane employment site."

Council's consideration of the Inspector's report

12. I turn then to deal with the Council's consideration of the Inspector's recommendations relating to the issue of employment land.
13. Section 10 of the report to Cabinet of 23rd January 2006 dealt with that issue. In paragraph 10.1, reference was made to the Inspector's conclusion that a modest shortfall of employment land provision compared to the structure plan requirement of 120 hectares would be acceptable. In paragraph 10.2 the report quoted the penultimate sentence of paragraph 5.1.6 of the Inspector's report, which I have already quoted. In Paragraph 10.3, reference was made to the importance which the Inspector attached to a reasonable range and choice of sites. Paragraph 10.4 referred to committed sites which met the criteria for the three categories of sites referred to in the Regional Spatial Strategy as sub-regional, good quality and other employment sites, together amounting to 24.27 hectares. Paragraph 10.5 referred to two re-allocated sites coming within the good quality category, increasing the portfolio of land to 33.17 hectares.
14. Paragraph 10.7 of the report stated:

"To rely purely on the committed and re-allocated sites would represent a significant under provision with respect to the Structure Plan. However the RSS is currently undergoing a revision, one objective being to re-examine regional and sub-regional employment land needs and requirements. This includes a study to provide further guidance to Local Planning Authorities on the amount of future employment land needed for their areas. This will enable overall levels of employment land needed by sub-region to be established and inform how land requirements should be set at the District Council level."

15. Finally, so far as that report is concerned, I should quote paragraph 10.8 in full:

"Having regard to the evidence that, with take-up rates of between 3-5 hectares per annum and the committed and re-allocated sites together providing a portfolio of employment land of 33.17 hectares, there is sufficient employment land for the remainder of the Plan period. It is therefore appropriate to deleting [sic] the current greenfield allocations from the Plan i.e. Bonehill Road Extension and Anker Valley as the evidence that came out of the Inquiry and the Inspector's assessment clearly indicate the sites are not needed. In addition both sites are dependent on significant infrastructure provision associated with other developments and therefore will not be readily available for some time. In this respect the Inspector made specific comment on the deliverability of the Anker Valley housing site and therefore the employment site. The issue of future provision of employment land up to 2021 will be dealt with through the Local Development Framework. This will be via a Site Allocations Development Plan Document that will be informed by the outcome of the RSS revision. This will require an amendment to the Local Development Scheme and will address any sudden increases in the demand for employment land."

16. Attached as Appendix 1 to that report was a Summary Schedule of the Inspector's recommendations with the Council's response to them. Dealing with the Inspector's recommendation that there should be no modification to the Bonehill site allocation, the Council's response was:

"Recommendation not accepted. Based on the current take-up rates of employment land and the current revision of the Regional Spatial Strategy, the Borough Council does not consider that the Bonehill Road Extension is needed. Moreover, it is a greenfield site which is dependent upon the provision of significant infrastructure and is not considered likely to come forward for development before 2011. For this reason it should not be allocated in the Local Plan.

Refer to Cabinet Report paragraphs 10.1 to 10.20."

17. Section 14 of a report to Full Council dated 10th April 2006 dealt with the issue of employment land. Paragraphs 14.1 to 14.3 of that report stated as follows:

"14.1 Having regard to the significant reduction in the employment allocation through the removal of the greenfield sites, objections have been made to both the Bonehill Road Extension employment site and Anker Valley. The objection to the former are on the grounds that the deletion of the site will seriously jeopardise the ability to provide high quality attractive sites and it is important to reduce outward migration. It is also considered that the change in strategy is significant such that it should be considered at a public inquiry. As for the Anker Valley site no reasons have been submitted to support the objection.

14.2 The reason for the deletion of the Bonehill Road Extension site has been made clear and is justified in the context of the Structure Plan. The Inspector implied by his reference to the amount of land allocated in the Plan that there was more than an adequate supply of employment land without this greenfield allocation. The importance of providing employment to meet the needs of the two is not disputed. But allocations should be made on sound robust evidence informed by the revision of the Regional Spatial Strategy via the Core Strategy and site allocations development plan document which all stakeholders will have the opportunity to influence.

14.3 No objections have been received from Staffordshire County Council and the Government Office for the West Midlands have supported the deletion of the greenfield allocations."

18. Finally, so far as the modifications are concerned, Policy EMP1 of the adopted Local Plan stated:

"Provision will be made on allocated sites for some 4 hectares of new employment land as required by Policy E1 of the Structure Plan. This constitutes a significant shortfall below the Structure Plan target, which is considered to be acceptable."

19. That figure of 4 hectares for provision on allocated sites is to be compared with the figure of 64.4 hectares in policy EMP1 of the Revised Draft Local Plan. At a later stage, that figure was updated to 50.8 hectares at which stage it was described as a "modest" shortfall below the Structure Plan target which was considered to be acceptable.
20. The claimant's challenge related not only to the Council's decision to modify the Plan by deleting the Bonehill site but also to the Council's decision not to hold a further inquiry relating to that proposed modification. In its objection to the proposed modification dated 23rd March 2006, the claimant requested a further public inquiry in relation to what it described as a significant change in the strategy of the Local Plan.
21. In fact, the question of whether objections to the proposed modification might justify a further inquiry had already been considered by the Council before any objections had been made. The report to Cabinet dated 23rd January 2006 contained the followed paragraph when dealing with the implications of the report:

"In considering the remaining process leading to the adoption of the Local Plan reference is made to the key issues of whether representations to the proposed modifications will result in the need for a further inquiry and a possible judicial review. Having regard to all the issues that have been raised through the Inquiry process and in particular the views of the Inspector it is considered, based on the evidence presented, that, should there be objections to the proposed modifications, these will not justify a further inquiry. Notwithstanding, a further inquiry is only held at the discretion of the Borough Council."

22. The same sentiment was expressed in paragraph 8.1 of the report when it was stated:

"... it is considered that the modifications proposed by the Borough Council, as detailed in Appendix 2, will not result in a further inquiry, even where they do not accord with the Inspector's recommendations, as the modifications were considered through the inquiry process and are based on the Inspector's Report. Therefore no delay is envisaged."

23. The relevance of the reference to no delay being envisaged is to be found in paragraph 2.1 of the report, where it was stated:

"While it is general practice to accept the Inspector's recommendations the Borough Council are not obliged to do so. However a statement will need to be prepared on the decision on each recommendation and to give full reasons for not accepting any recommendation made by the Inspector. The statement of reasons will need to be available at the same time the modifications are published. It is important that the remaining process leading to adoption is not unduly delayed. However a key date is 21st July 2006. If the Plan is not adopted by this date the Plan will be subject to a Sustainability Appraisal. If this occurs it would be more appropriate to abandon the Plan and revise our Local Development Scheme in respect of the preparation of Development Plan Documents as part of our Local Development Framework."

24. In the report to Full Council dated 10th April 2006 dealing with the representations received on the proposed modifications, paragraph 2.1 referred to "the key date" of 21st July 2006, stating that if the Plan were not adopted by then, it would be more appropriate to abandon the Plan because it would have to be the subject of a Strategic Environmental Assessment. Paragraph 3.1 stated that it was "imperative" that the adoption of the Local Plan was not delayed beyond 21st July 2006 because it would result in a policy void.
25. Finally, paragraph 14.4 of that report dealt with the issue of a further inquiry, stating:

"It is not considered necessary to hold a further public inquiry. The issues that informed the employment allocations at the outset were known when the matter of employment allocations, and in particular the objections to the greenfield allocations, were considered at the Local Plan Public Inquiry. The Inspector has clearly indicated that there is adequate employment land without the greenfield allocations."

Challenge to decision to delete Bonehill site

26. The claimant's case relating to the decision to modify the Local Plan by deleting the Bonehill site was, in essence, that it was a radical change made in a way that was unlawful because, firstly, it misconstrued the Inspector's report; secondly it gave reasons which were wrong, not clear or cogent and were not supported by the Inspector's recommendations; thirdly, it was not in conformity with the Structure Plan; and, fourthly, it was not supported or prompted by the Regional Spatial Strategy ("RSS").
27. So far as the first ground of challenge is concerned, it was submitted that the Council's reliance on the Inspector's conclusions in paragraphs 5.1.3 and 5.1.6 of his report that historic take-up rates would lead to half of the employment land supply being sufficient was misconstrued because it was simply an illustration provided in the context of justifying a moderate under-provision in relation to the Structure Plan requirement and was not intended to justify a radical deletion of half of the Structure Plan requirement.
28. The Council's answer to this point was to rely on the Inspector's statement in paragraph 5.1.3 of his report that, when considering whether the land allocation figures significantly exceeded or under-provided the Structure Plan requirement, what is "significant" has to be judged pragmatically and that, on the Inspector's analysis in paragraph 5.1.6 of his report, adopting a pragmatic approach, a reduction in half of the employment land provision would not be a significant under-provision and would be in conformity with the Structure Plan.
29. Whilst I can understand the force of the Council's reliance on paragraph 5.1.6 of the Inspector's report, I am not convinced that the Inspector was intending what he said to be construed in the way in which the Council have construed it so as to justify what is, without doubt, a radical change in the Plan so far as employment land provision is concerned, involving a reduction in employment land provision to almost half of the Structure Plan requirement. If the Inspector had intended what he said to justify what the Council subsequently decided, he would have logically recommended the deletion of the Bonehill site which had been the subject of objection by other parties at the public inquiry. Not only did he not do so, but he positively recommended that it should be retained for the reasons given in paragraph 5.5.3 of his report where he concluded that it was reasonable to describe the site as a high quality site which had a greater chance than most other sites in Tamworth of attracting clients with an international/national/regional choice of location. That conclusion reflected the Council's evidence in paragraph 3.28 of its Topic Paper on employment, which was before the Inspector, where the Bonehill site was described as a "key site" in the portfolio of sites to attract a variety of potential developers and businesses to Tamworth.
30. Even if I were wrong that the Council had misconstrued what the Inspector said in paragraph 5.1.6 of his report or had taken it out of context, I can find no mention in the Council's consideration of the proposed deletion of the Bonehill site of the positive attributes of the site as identified previously by the Council or as identified by the Inspector, namely that it was a key high quality site which had a greater chance than most other sites in Tamworth of attracting clients with an international/national/regional choice of location. On any view of the matter, those must be highly material considerations when deciding whether or not to retain the site, but I can find no mention of them in the report to Cabinet or to the Full Council. In my view, that constitutes a failure to take into account relevant considerations when deciding to delete the site.
31. It seems to me that the claimant is right in saying that the Inspector's remarks in paragraph 5.1.6 of his report were made in the context of justifying a moderate under-provision in relation to the Structure Plan requirement of 120 hectares. As he said in paragraph 5.1.4 of his report, an approach which resulted in a moderate shortfall below the 120 hectare figure would not, in his view, be out of conformity with the Structure Plan. What has happened, as expressly acknowledged by the Council in policy EMP1 of the adopted Local Plan, is a provision which constitutes a significant shortfall below the Structure Plan requirement.
32. The claimant's second ground on this part of the case relates to the reasons given by the Council for the modification to delete the Bonehill site. Reliance was placed on paragraph 20 of Annex B of Planning Policy Guidance 12 ("PPG12") where it is stated that, where a local authority choose not to accept an Inspector's recommendation, it must provide "clear and cogent reasons" for doing so.
33. I have already quoted the reasons given for deleting the Bonehill site as contained in the report of 23rd January 2006 and as summarised in Appendix 1 to that report. The first reason contained in Appendix 1 was that the site was not needed based on current take-up rates and the current revision of the Regional Spatial Strategy. The point relating to take-up rates is inherent in the aspect I have already dealt with when considering the Council's reliance on paragraphs 5.1.3 and 5.1.6 of the Inspector's Report. The reason given relating to the current revision of the RSS is criticised by the claimant on the basis that there is no published revision of the RSS or any study relating to it. It is said to be unlawful to seek to rely on a policy that does not exist. The Council, on the other hand, contend that the reliance on the revision of the RSS is simply to show that the door is not closed and that, if there were to be a need, it can be considered in the forthcoming RSS.
34. Although I have some sympathy with the point made by the claimant, when Appendix 1 is read together with the report of 23rd January 2006, it is tolerably clear that the point is tied up with the conclusion that there is no need for the Bonehill site. The point that is being made is that, if there were subsequently to be shown to be a need for the site, it could be dealt with in the revision of the RSS. On that understanding, I do not consider that it gives rise to any adverse finding beyond that which I have already dealt with under the claimant's first ground of challenge.
35. The second reason given in Appendix 1 for deleting the Bonehill site is that it is a greenfield site dependent on the provision of significant infrastructure and is not considered likely to come forward for development before 2011. As the claimant rightly says, the site has been a greenfield site with the same policy considerations all the time that the Council was promoting it in the Local Plan. The more important point, however, is the infrastructure and related timing point.
36. The claimant submits that there is no evidence that the site is dependent on the provision of significant infrastructure. Indeed, the evidence by way of a witness statement from Mr Timothy, a planning expert, made on behalf of the claimant, is that there is no technical or other impediment to the development of the site which would preclude it from being brought forward for development before 2011. I was told that the claimant had expressly requested the Council to provide evidence to support the infrastructure assertion but, despite that request, no evidence had been provided. It was not dealt with in the witness statement of Mr Vanstone, the Council's Strategic Planning Manager, or in any other document. That was accepted to be the position by the Council, although I was told that the Council did not accept that there was not any infrastructure problem.
37. I find it significant that the Council has failed to provide any evidence to substantiate the alleged infrastructure and associated timing reason for deleting the site despite being expressly requested to provide it by the claimant. It would be surprising if it could be substantiated because the site was positively promoted by the Council at the public inquiry. The only evidence I have is that there is no such infrastructure problem. In those circumstances I conclude that the second reason for deleting the site, namely the infrastructure and associated timing point, is unsubstantiated and was therefore wrongly relied on by the Council as a reason for deleting the site.
38. The third ground of challenge on this aspect of the case is that the deletion of the site was not in conformity with the Structure Plan. By virtue of section 36(4) of the Town and Country Planning Act 1990 and the transitional provisions in Schedule 8 of the Planning and Compulsory Purchase Act 2004, the Local Plan must be in general conformity with the Structure Plan. The claimant's case is that the deletion of about half of the Structure Plan requirement from the employment land provision in the Local Plan results in a significant under-provision compared to the Structure Plan requirement and results in the Local Plan not being in general conformity with the Structure Plan. The Council submits that, on a pragmatic basis, there was conformity. It relies on the fact that there was no objection from the County Council, the strategic planning authority, or from the Regional Planning Body.
39. I recognise the force of the lack of objection on non-conformity grounds from those bodies, but there is no formal response from either of those bodies positively stating that the Local Plan employment provision is in conformity with the Structure Plan. Indeed, I find it difficult to see how there could be such a response in the light of the express terms of policy EMP1 of the Local Plan which states that the employment land provision constitutes a significant shortfall below the Structure Plan target. I fail to see how such a significant shortfall can be said to be in general conformity with the Structure Plan. Policy EMP1 simply states that the provision is considered to be acceptable. The justification for the policy states that the provision (which amounts to about half of the Structure Plan requirement) will be adequate for the plan period. In my view, that is tantamount to recognising that it is not in general conformity with the Structure Plan but maintaining that it is nevertheless acceptable. On the evidence before me, I therefore conclude that there is substance in the claimant's third ground of challenge that the deletion of the Bonehill site, together with the deletion of the Anker Valley site, can be said to result in the employment land provision not being in general conformity with the Structure Plan.
40. The claimant's fourth ground of challenge to the decision to modify the Local Plan by deleting the Bonehill site relates to the reliance on the Regional Spatial Strategy, but I dealt with that when dealing with the reasons given for the deletion of the site.

Challenge to the decision not to hold a further inquiry

41. The final and separate ground of challenge by the claimant relates to the Council's decision not to hold a further public inquiry.
42. The law on this aspect was helpfully summarised by Mr Robin Purchas QC sitting as a Deputy High Court Judge in the case of Drextine Holdings Ltd v Cherwell District Council [1998] JPL 361, when he stated at pages 372 to 373 as follows:

"There is no duty to hold a further inquiry into objections to modifications. The reason for that is plain. Modifications generally respond to objections to the original proposals, which have already been the subject of examination by the local plan inspector. Where there is no new issue or objection to be considered, a second inquiry would generally be unnecessary, costly and lead to delay. However, Parliament did consider it appropriate expressly to provide the authority with the power in its discretion to hold a further inquiry. The fact that a proposed modification involves issues which have not been subject to consideration at the deposit stage could be a highly material consideration in determining whether or not a further inquiry should be held. Considerations that would generally be material to that decision would include:

(1) Whether or not the issue raised had been previously subject to independent scrutiny by an inspector so as to provide independent evaluation of the opposing contentions;

(2) The current advice in paragraph 69 of annex A to PPG12;

(3) The practical implications of a second inquiry and, in particular, whether it would potentially be of material benefit to the decision making process;

(4) Delay and the desirability of securing an up to date adopted development plan; and

(5) Fairness to the objector and to other parties; as with all decisions of this kind, the determination whether or not to hold a further inquiry should seek to achieve fairness, balancing the interests of all relevant parties; however, in the light of the Court of Appeal decision in Warren it is not appropriate in the context of a challenge to a decision whether or not to hold a new inquiry to elevate the consideration of fairness to an administrative law obligation that goes beyond usual Wednesbury principles."

43. I should also mention that in Stirk v Bridgenorth District Council [1997] 73 P&CR 439 the Court of Appeal held that, in circumstances such as these, where the Council is both proposer and judge, the obligation to deal thoroughly, conscientiously and fairly with any objection is enhanced.
44. The main thrust of the claimant's challenge to the Council's refusal to hold a further inquiry is that the Council pre-determined the issue and approached it with a closed mind in the context of a known deadline and that the Council failed to consider the issue of fairness. The claimant points to the references in the report of 23rd January 2006 which I quoted earlier where it was stated that, should there be objections to the proposed modifications, they would not justify a further inquiry, that being said before it was known what the objections were. It was submitted that that was eloquent of a closed mind and was an unlawful approach to the issue. Further, it was contended that the deletion of the Bonehill site on the ground of lack of need was not an issue at the inquiry and that it would have given rise to different considerations including a comparison of sites for exclusion.
45. The Council, on the other hand, point out that there was no duty to hold a further public inquiry. The references in the report of 23rd January 2006 to no need for an inquiry before the objections were known was said to be simply an officer's assessment at the time, and reliance was placed on paragraph 14.4 of the report of 10th April 2006, which I quoted earlier, as showing that there was not a closed mind on the issue of a further inquiry. It was submitted that the issue of take-up rates and the need for employment land had been considered at the inquiry and that a further inquiry would delay the Local Plan so that it would have to be abandoned. Finally, it was contended that a further inquiry would not produce information of such materiality as to outweigh the adverse impact on other parties, including the Council.
46. The starting point on this issue must be that the deletion of the Bonehill site did not result from an objection to it raised at the public inquiry. On the contrary, the objections to it raised in the inquiry were opposed by the Council and that opposition was upheld by the Inspector. The possibility of deleting the Bonehill site (and the Anker Valley site) on the ground of lack of need was not an issue at the inquiry. On the contrary, its attractions were singled out by the Inspector, and the Council were contending that it was a key site. There is no doubt that its deletion as part of an exercise to reduce the employment land provision to half of the Structure Plan requirement was a radical change which would give rise to fresh issues about which the claimant would understandably wish to adduce new evidence. There is no doubt in my mind that the refusal to hold a further inquiry caused unfairness to the claimant. On the other hand, I acknowledge that the delay that would be caused by a further inquiry could have led to the abandonment of the Plan. That is a weighty consideration to be put into the balance.
47. I find it highly surprising that the report of 23rd January 2006 stated that any objections to the proposed modifications would not justify a further inquiry before it was known what the objections were. I can entirely understand the suggestion by the claimant that it showed that the Council was approaching the matter with a closed mind, most probably influenced by the necessity to adopt the Plan by 21st July 2006.
48. The reasons given in paragraph 14.4 of the report of 10th April 2006 for not holding a further inquiry do not refer to the effect of delay on the Local Plan. Instead, they refer in particular to the objections to the greenfield sites having been considered at the Local Plan inquiry and to the inspector having clearly indicated that there is adequate employment land without the greenfield allocations. In fact, the objections to the greenfield sites considered at the Local Plan inquiry did not include their deletion on the ground of lack of need, nor did the Inspector consider whether they should be deleted on the ground of adequacy of employment land.
49. I am not persuaded that the reasons given for not holding a further inquiry are adequate in themselves or adequate to remove the feeling that the Council had already made up its mind not have a further inquiry, possibly influenced by the pressure of the deadline of 21st July 2006. In particular, there was no consideration of the unfairness to the claimant to be set against any unfairness arising from the possible consequences to the Plan from the delay caused by further inquiry. In summary, there was not a balanced, adequately reasoned or fair approach to the decision not to hold a further inquiry. If there had been such an approach, it is possible, although not certain, that the decision would have been the same but that is not the point. There was not such an approach in the decision making process and I would therefore uphold this ground of challenge as well.

Discretion.

50. Having found against the Council for the various reasons that I have given, it remains for me to consider whether, despite those findings, I should exercise my discretion not to quash the relevant provision of the Plan, namely policies EMP1 and EMP2 and the elements of the Proposals Map relating to policy EMP2.
51. It was submitted on behalf of the claimant that I should exercise my discretion not to quash those provisions of the Plan because otherwise it would leave the Local Plan without those provisions for a potentially substantial period of time which could lead to the undesirable situation of ad hoc planning applications being made in the absence of those policies. I was told that it might be about three years before policies relating to employment site allocations were adopted in the Local Development Framework process.
52. I am not persuaded by that argument. I have held against the Council on a number of different grounds. In my view, the disadvantages of quashing the relevant polices are not so great as to outweigh the matters on which I have found against the Council. I therefore decline to exercise my discretion not to quash those policies.

Overall conclusion

53. My overall conclusion therefore is that this application succeeds and that policies EMP1 and EMP2, together with the elements of the proposals relating to policy EMP2, should be quashed.