Neutral Citation Number: [2007] EWHC 628 (Admin)
Case No: CO/4228/2006
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

3rd April 2007

Before:

THE HONOURABLE MR JUSTICE WYN WILLIAMS
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Between:

	GEORGE WIMPEY UK LIMITED	Claimant	
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	TEWKESBURY BOROUGH COUNCIL	Defendant	

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Mr Peter Village QC and Mr Robert White 
(instructed by Messrs Berwin Leighton Paisner LLP Solicitors) for the Claimant
Mr Patrick Clarkson QC and Ms Zoe Leventhal instructed by and for the Defendant

Hearing dates: 14th-15th February 2007
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Judgment
Mr Justice Wyn Williams: 

1.	I have before me two applications. The first is an application made under Section 287 of the Town and Country Planning Act 1990 for orders quashing selected parts of the Local Plan adopted by the Defendant, Tewkesbury Borough Council. Secondly, there are proceedings for judicial review. In those proceedings the Claimant seeks permission to proceed and, substantively, declaratory relief in respect of one part of the Local Plan and, further, declaratory relief in relation to the Defendant’s refusal of its request for a second local public enquiry in relation to the Plan.
2.	Before dealing with the grounds upon which these proceedings are based, it is necessary that I set out relevant factual and background material. I take much of my recital of that material from the comprehensive skeleton arguments prepared by counsel.
3.	The Claimant is the owner of land located to the north of the settlement known as Bishops Cleeve, Gloucestershire. In these proceedings that area of land has been referred to as “the Homelands Farm Site”. In this judgment I will refer to it as “Homelands Farm.” The Claimant wishes to develop this land for residential purposes.
4.	In November 1998, the Defendant placed on deposit the first draft of a Local Plan. In January 2001, it published a revised version of that plan. Homelands Farm was not allocated within the plan for new housing development.
5.	In response to the revised plan the Defendant received a number of representations and objections. The Claimant objected to the fact that Homelands Farm was not allocated for housing development. It also objected to many of the sites which the Defendant had allocated for housing within its draft plan.
6.	A local public inquiry was convened to consider all the representations and objections which had been made in connection with the draft plan. A duly appointed inspector conducted the inquiry between March 2002 and December 2002 although, as I understand it, the inquiry was not formally closed until March 2003. The Claimant appeared at the inquiry to support its contention that Homelands Farm should be included within the housing allocations in the plan and to object to the inclusion of various other sites. In particular, in the context of this challenge, I should record that the Claimant objected to the inclusion of two sites, namely a site at Leckhampton Lane, Shurdington and a site at Stoke Orchard. At that time those sites were included within the draft plan as policies SH1 and ST1. For the remainder of this judgment I will call those sites “the Shurdington site” and “Stoke Orchard.”
7.	In due course, the Inspector reported her findings and detailed her recommendations. She sent her report to the Defendant together with a covering letter which summarised her recommendations.

8.	The Inspector’s letter dealt in some detail with the interconnected issues of housing and Green Belt. The following extracts are relevant on those topics.
 “9. It needs to borne in mind that the plan had a very long gestation period, during which there had been significant policy changes at the county, regional and national levels. As a result the strategy of the RDDLP [Revised Deposit Draft Local Plan] which emerged more than two years after the Deposit Draft, differs significantly from it, and many objections had been overtaken by events. Since the publication of the RDDLP, new regional guidance in the form of RPG10 (September 2001) has been provided, and the modifications to the Plan will be considered against the background of the emerging Gloucestershire Structure Plan Third Alteration, which has commenced its Examination in Public.
10. The main policy issues dealt with by the inquiry were concerned with housing and the Green Belt. My recommendations generally endorse the Plan’s approach to the residual housing requirement and to the development of the strategic housing site at Brockworth/Hucclecote. But, perhaps as a result of its history, I find that the plan lacks a clear vision for a sustainable development of the Borough, and this gives rise to a number of important weaknesses. I identify significant difficulties with a number of the proposed housing allocations, mainly because of their incompatibility with PPG3. The absence of any published, comparative sustainable assessment of the proposed allocations has not assisted the development of the strategy that would implement PPG3. And fundamentally, the Council’s decision to not evaluate the contribution that could be made to a more sustainable pattern of development by selective release of Green Belt land has led, in my view, to a plan that could frustrate the implementation of  RPG10’s vision for this part of the region. In the light of these and/or other factors, I recommend that the proposed allocations under Policies BR4, SH1, DH1, HM2, BC4, SH3, AS5, WI1, WI2 and ST1 be deleted. Acceptance of my recommendations will entail significant re-working of the Plan and further delay in adoption, but for the reasons set out above I consider that this is vital to the achievement of a more sustainable pattern of development not just in the Borough but in its hinterland.
11. In order to bring forward a more sustainable strategy, I recommend that a full comparative assessment of potential housing allocation should be undertaken and made publicly available as a background study for the modified plan. In this regard the Council will no doubt look more closely at potential (sic) identified in the Urban Capacity Study and seek to update and refine it. Nonetheless, on the basis that some greenfield allocations will be required, I recommend that alterations should be made to the Green Belt boundary where this would meet the tests set out in PPG3. The Council made clear during the inquiry that, in these circumstances, it would wish to consider all potential Green Belt releases, and not just those canvassed in the objections. I have therefore indicated both the Green Belt and non-Green Belt sites that were raised in the objections and that merit inclusion in the assessment of potential new allocations. These are the omission sites at M and G Sports Ground and Golden Yolk Farm/Middle Farm at Badgeworth; Homelands Farm, Bishops Cleeve; Green Street/Kennel Lane, Brockworth; south of Mill Lane, Brockworth; an extension of the Policy HU1 housing area at Hucclecote Road, Hucclecote; Longford/Innsworth; and Barbridge Nurseries, Uckington. …..
13. The scale of development at Bishops Cleeve was the focus of a number of objections to the Plan. There was insufficient evidence to conclude that Bishops Cleeve is not capable of accommodating expansion of the magnitude envisaged in the RDDLP, although I recommend the deletion of the largest housing allocation there for site-specific reasons. But in assessing the most sustainable options at the modifications stage, the Council will no doubt take account of RPG10’s concern, expressed at paragraph 3.11, that some growth relating to the Principal Urban Areas appears to have been leaping the Green Belt boundary to nearby commuter towns, leading to less sustainable patterns of development and travel.”
9.	As will be apparent from that extract from the Inspector’s letter, she recommended that the Shurdington site and Stoke Orchard be deleted from the housing allocations. Further she recommended that Homelands Farm should be included in the assessment of potential new allocations which she suggested should be undertaken.
10.	The Defendant asserts that following the receipt of the Inspectors’ recommendation and letter it carried out a “full comparative assessment of potential housing allocations” as recommended by the Inspector. The results of that assessment are contained in two documents. The first is entitled “Technical Paper 1: Site Sustainability Assessment May 2004”. The second is entitled “Technical Paper 2: Settlement Sustainability Assessment May 2004”.
11.	In June 2004, the Defendant published a document entitled “Inspector’s Recommendations and Tewkesbury Borough Council’s Statement of Reasons.” This was a document which not only identified modifications to the Draft Plan but which also considered the Inspector’s recommendations and the Defendant’s response to those recommendations. The Defendant proposed that its Plan should be modified by the deletion from the housing allocations of the Shurdington site and Stoke Orchard.
12.	As I have indicated already, the Inspector had recommended that Homelands Farm should be included within the assessment undertaken by the Defendant. The Defendant accepted that suggestion and included the site within the assessment. However, the Defendant decided not to include the site within its housing allocation. It’s reasons for non-inclusion were as follows:
“Recommendation is not accepted. The site was assessed as part of the comparative assessment of potential alternative locations. While it is relatively well located in relation to local facilities, it is remote from the centre of Cheltenham. The Inspector advised the Council to consider the implications for Bishops Cleeve of RPG10’s reference in paragraph 3.11 to development related to the Principal Urban Areas leaping the Green Belt to nearby commuter towns. This issue has acquired added weight following publication of the EIP Panel’s Report on the Gloucestershire Structure Plan Third Review. The Panel concluded that there was a need to move away from past patterns of development, and that Bishops Cleeve should be excluded from the PUA (recommendation 6.8). In their view, the only potential for further strategic growth at Bishops Cleeve would be if a decision was taken to review the Green Belt to the south, thus opening the way for development between the PUA and Bishops Cleeve. Given a strategy of focussing development in sustainable locations well related to the Principal Urban Areas and thereby creating a sustainable framework which would set the context for future development, strategic scale sites adjacent to the northern edge of Bishops Cleeve do not score as well as other potential locations. It is therefore concluded that major development allocations are not appropriate to the settlement of Bishops Cleeve, where housing growth should be limited to smaller scale sites designed to meet local needs. The allocation of the Homelands Farm site would therefore constitute unsustainable leapfrogging of the Green Belt.”
13.	Two sites for housing, namely Longford/Innsworth and M and G Sports Ground, were included in the proposed modifications. As I understand it those sites were, hitherto, within an area designated as Green Belt.
14.	The Claimant made a number of representations and objections to the proposed modifications. Those objections are succinctly summarised in the Claimant’s Skeleton Arguments in this way:
“5.14. The Claimant objected to the first Proposed Modifications, in particular the Council’s new strategy identified for the first time in the Proposed Modifications of allocating sites in the Green Belt for housing. The Claimant, inter alia, requested a further public inquiry be held because it had not had the opportunity to object to the Green Belt sites during the local plan inquiry”.
Not surprisingly, the Claimant also sought the inclusion of Homelands Farm as a Housing Allocation within the Plan. 
15.	On the 17th May 2005, the Defendant published a report entitled “Response Report on Proposed Modifications”. That document was in conventional form. It summarised each of the objections which had been made to the proposed modifications; it set out the Defendant’s consideration of that objection and it then specified whether or not any change was to be made to the plan.
16.	Before dealing with this document I should record that on the 1st April 2005 the Government Office for the South West (GOSW) on behalf of the Secretary of State published a Direction ordering Gloucestershire County Council not to adopt the Structure Plan Third Alteration unless modified in accordance with that Direction. 
17.	A significant part of the “Response Report on Proposed Modifications” was taken up with a consideration of Policy HOU1 Housing Allocations. The Defendant  introduced its consideration of this topic by stating:-
“The GOSW Direction indicated that the use of Green Belt may be appropriate within the Structure Plan Third Alteration period and that there should be a greater emphasis on development at the PUAs, particularly Cheltenham. Whilst this supported the approach set out in the Local Plan Proposed Modifications, it also provided a steer towards sites better related to the Cheltenham PUA
Taking this Direction into account as well as representations made in respect of Green Belt issues and other material considerations, the package of housing sites has been modified. The reasons for the amendments to these allocations are set out under the site specific local policies.
The Housing Strategy is amended by the deletion of Land at Longford/Innsworth and its replacement with Farm Lane/Leckhampton Lane 360 dwellings. CRE, Stoke Orchard 135 dwellings. Increased capacity Dean Farm, Bishops Cleeve plus 25 dwellings”.
18.	In line with that introductory explanation, the Defendant decided to include the Shurdington site and Stoke Orchard within the housing allocations. In this version of the Plan the Shurdington site was policy SD2.
19.	In relation to the Shurdington site the reasons given in support of its inclusion were as follows: - 
“The Cheltenham LP Inspector’s Report recommended that the Cheltenham White Land which adjoins the site should not be developed and its landscape character safeguarded for the duration of the Cheltenham LP. However he acknowledged that the longer term future of the wider area needed to be resolved in the context of the sub-regional work. The GOSW Direction emphasised the importance of focusing more development at the Cheltenham PUA. Given its safeguarded land status, and that the TBC Inspector’s concerns regarding landscaping issues can be satisfactorily addressed, the site is now recommended for inclusion in the strategy. A capacity of 360 dwellings is proposed given the need to mitigate landscape impact. The need to adopt a plan, monitor, manage approach in respect of the emerging RSS and the need to address the problem potential of suitable public plant transport provision means the site is phased long term.”
The document then set out the text of the proposed policy SD2 which allocated the land in question for approximately 360 dwellings. The draft policy also contained a reasoned justification. It is necessary that I quote it in full.
“Land is allocated to meet the strategic requirements as set out in HOU1. A design and development brief will be prepared for the site in consultation with interested parties and will be taken into account as a material consideration in the determination of planning applications. The site was previously safeguarded land originally identified in the Cheltenham Environs Local Plan adopted in 1986 (Policy ENV5A refers) and is presently in agricultural use. RPG10 requires strategic housing requirements to be focussed at the Principal Urban Areas, with the GOSW Direction in respect of the Structure Plan Third Alteration emphasising the need to increase the proportion of development at the Cheltenham PUA. The site will be phased to commence in 2007-2011 to enable development to be considered in association with any proposals which may emerge for that part of the White Land within Cheltenham Borough through the RSS.
The site’s location on the southern fringe of Cheltenham will minimise the transportation demand arising from the development due to its proximity to a range of community, employment, retail and recreational facilities, which can be accessed by the choice of transport modes.
It is essential that in order to accommodate the additional journeys arising from the inhabitants of the development that a contribution is made to enhancing the public transport service between Cheltenham and Gloucester along the A46 and on other local routes serving the site, and into the site itself, subject to further investigation. It is anticipated that the journeys to work from this location are likely to include both Gloucester and Cheltenham being facilitated by the County Council’s Quality Public Transport Corridor to Gloucester along the A46 and via Brockworth. The design of the development should give priority to pedestrian and cycle movements.
The affordable housing to be provided will contribute to meeting the strategic requirement for affordable housing identified within the Tewkesbury Housing Needs Survey (1998) and the Ark Report (2002). Subject to the identified local need as defined by an up-to-date assessment, the number of affordable dwellings that will be sought on the site may change, but the target of 108 dwellings will be the starting point for negotiations in accordance with Policy HOU13. It is anticipated that the affordable housing will be provided as 50% low cost home ownership and 50% rented.
The development will be required to contribute to nursery, primary and secondary education infrastructure in relation to the numbers of pupils arising from the scheme. This will reduce school car trips and ensure sufficient local education capacity to accommodate the pupils arising.
The southern boundary of the site lies adjacent to the Cotswolds Area of Outstanding Natural Beauty. The provision of a well designed landscaping scheme will therefore be particularly important to provide an appropriate meeting of town and country.”

20.	For reasons which will become apparent it not necessary that I deal in any detail with Stoke Orchard.
21.	There are, however, other parts of this document which are relevant. In dealing with an objection made to its sustainability assessment of various potential housing sites the Defendant responded:
“The site sustainability assessment was only intended to provide a broad indication of relative sustainability. The shadings were used to provide a visual impression of relative weighting – a rigid system of weighting criteria/ranking of sites would not provide a better understanding. The Green Belt status of sites was indicated as part of the strategic location category. The sites selection process considered realistic alternative locations taking into account the advanced stage of the local plan process and the Inspector’s recommendations – it was not appropriate to widen the assessment to include other sites, and it is not accepted that additional criteria were needed. The site sustainability assessment was just one element taken into account on the Site Selection Process which followed guidance set out in PPG3 – other factors included infrastructure capacity and the ability to build communities.”
22.	I should refer, finally, to a Response made by the Defendant to the objections made to the original proposal that the Shurdington site should be deleted from the Plan. In relation to this the Defendant stated:
“It is not accepted that the sequential test process has been misinterpreted or that the site selection process was flawed. PPG3, paragraph 29 advises that 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. Paragraph 30 states that in identifying sites to be allocated for housing in local plans, local planning authority should follow a search sequence, starting with the re-use of previously-developed land and buildings within the 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 result of the RPG and strategic planning processes. In doing so, they do not need to consider all land in their areas: they should not extend the search further than required to provide sufficient capacity to meet the agreed housing requirement. Paragraph 31 advises that in deciding which sites to allocate for housing, local planning authorities should assess their potential and suitability for development against each of the following criteria:
the availability of previously-developed sites and empty or under-used buildings and their suitability for housing use; 
the location and accessibility of potential development sites to jobs, shops and services by mode other than the car, and the potential for improving such accessibility;
the capacity of existing and potential infrastructure, including public transport, water and sewerage, other utilities and social infrastructure (such as schools and hospitals) to absorb further development and the cost for providing further infrastructure;
the ability to build communities to support new physical and social infrastructure and to provide sufficient demand for sustain appropriate local services and facilities; and
the physical and the environmental constraints on development of land, including, for example, the level of contamination, stability and flood risks, taking into account that such risk may increase as a result of climate change.
TBC has followed this advice, taking into account Inspector’s recommendations, using the site sustainability assessment to indicate comparative differences, & other material considerations.
The Inspector’s recommendations were clear that the use of Green Belt land in exceptional circumstances needed to be demonstrated, but the comparative study of all potential sites was appropriate in order to secure a more sustainable pattern of development.
The Green Belt status was identified in the comparative sites assessment, and the exceptional circumstances test taken into account as part of the overall site selection process.
It has always been acknowledged that the pros and cons of the Leckhampton safeguarded land site in relation to the overall dwelling requirement and potential alternative locations are finely balanced…. In order to secure a balance of development across the Borough, weight is given to the GOSW Direction which seeks to locate proportionately more development at the Cheltenham PUA.”
23.	The Claimant objected to the Second Proposed Modifications. It objected to the inclusion of the Shurdington site and Stoke Orchard on the grounds that the sites were in the Green Belt. It maintained that Homelands Farm should be included within the Plan. The Defendant refuted the assertion that the Homelands Farm and Stoke Orchard were in a Green Belt. It maintained that sites north of Bishops Cleeve were rejected by the EIP panel and GCC as being part of the Cheltenham PUA.
24.	The Claimant was by no means the only objector to the inclusion of the Shurdington Site. The objectors included GOSW, Cheltenham Borough Council, Shurdington Parish Council and no less than 672 objections. The objections are summarised in the Defendant’s Response to the Second Proposed Modifications and, additionally, the reasons for rejecting those objections are set out.
25.	On the 18th October 2005 the Defendant resolved to adopt the Plan without further modifications.
26.	On the 15th of November 2005 the First Secretary of State issued a Direction to the Defendant to modify the plan by deleting Stoke Orchard. In response to that Direction the Defendant produced a Third Proposed Modifications on the 6th December 2005 which, inter alia, deleted Stoke Orchard. Further, in response to observations by the Government of the South West the Defendant indicated that the Shurdington site and the site at M &G Sports Ground would not be granted planning permission in advance of a comprehensive review of the Green Belt.
27.	In response to this indication the Claimant made a specific objection to the Third Proposed Modifications. It was in the following terms:
 “The new wording for Policy HOU1 states that planning permission will not be granted for two sites, the M & G Sports Ground and Leckhampton Lane, Shurdington, until a comprehensive Green Belt review has been completed and the outcome of the RSS has been obtained. These numerically significant allocations cannot be implemented without other major events taking place and being resolved. Allocating those sites in a local plan at this stage, is therefore, premature. The Local Plan’s housing strategy is heavily reliant on such sites, lacks certainty of delivery, ignores other sustainable development options, and should be reconsidered to identify and deliverable sites”.
28.	On 16th January 2006 the First Secretary of State withdrew his objection to the Plan. In February 2006 the Defendant published its Report on Responses to Third Proposed Modifications. In response to the specific objection made by the Claimant the Defendant responded as follows:
“The phasing arrangements including in HOU1 in respect of the BA1 and SD2 sites [M&G and Shurdington] have been included at the request of GOSW in accordance with Government Policy of plan monitor and manage. These sites were already phased to the period 2007/2011 in the Local Plan, their linkage to the RSS process will ensure that the implementation of the local plan will not prejudice the emerging RSS strategy.”
29.	The Defendant’s response indicated that it did not intend to further alter the draft plan. On the 31st March 2006 the Defendant issued a notice of intention to adopt the Local Plan and it did so on the 10th April 2006.
30.	Policy HOU1 of the adopted Plan reads as follows:
“Land is identified to accommodate up to 3579 dwellings 01.01.2003 to 30.06.2011 as defined on the proposals map. The distribution of dwellings between the identified sites is as follows……..”
There then follows a list of sites which include the Shurdington site and the site at M & G Sports Ground. The policy continues:
“…two sites – BA1 and SD2 (M & G and Shurdington) are phased to the latter part of the plan period 2007-2011. Planning permission will not be granted for development of the BA1 site in advance of a comprehensive review of the Green Belt as required by RPG10, planning permission will not be granted for development of the SD2 site prior to its identification as an appropriate location for strategic development through the RSS process.”
There then follows a “reasoned justification” and part of that reads:-
“In order to ensure that the development of potentially more sustainably located sites is not prejudiced, two sites are phased to the latter part of the plan period (2007-2011), these are Middle Farm/ M & G Sports Ground and Farm Lane/ Leckhampton Lane. Planning permissions will not be released for these sites prior to their identification as part of the sustainable extensions to the PUAs to be identified through a comprehensive review of the Green Belt. This will ensure that the strategy of the emerging Regional Spatial Strategy is not compromised. The phasing element of HOU1 will be kept under review and be monitored on an annual basis in order to fulfil the plan, monitor, manage approach set out in PPG3. If the SD2 site (Shurdington) is identified as part of a sustainable urban extension through the Green Belt review process then a process of joint working with Cheltenham Borough will be entered into in order to develop an appropriate comprehensive mixed development scheme for the area.”
31.	It can be seen from this lengthy recital of the background leading to the adoption of the Plan that it was in gestation for very many years. Inevitably, during that period, national and regional policy guidance was issued which was of relevance to the plan as it evolved. In this case the parties have highlighted the following important policy documents.
32.	PPG3 – Housing was issued in March 2000. Paragraphs 28 to 34 of that Document have particular relevance to the issues in this case. I will return to the salient parts later in this judgment.
33.	RPG10 – Regional Planning Guidance for the South West was published in September 2001. It designated “principal urban areas” within the region as a whole and Gloucester and Cheltenham were two such areas. Under the heading “Principal Urban Areas” the following paragraph appears:
“3.11  ……. Gloucester and Cheltenham are partly or wholly surrounded by Green Belt. Some growth relating to these PUA appears to have been leaping the Green Belt to nearby community towns, leading less sustainable patterns of development and travel. The purposes of Green Belt policy (as set in PPG2) remain an essential part of RPG for the South West. However the need to ensure that future patterns of development are more sustainable means that the boundaries of these Green Belts should be reviewed in the next round of structure plan.”
34.	The Third Review of the Gloucestershire Structure Plan was subject to an examination in public. The panel published its report in March 2004. As I have already said, however, in April 2005 GOSW issued a Direction ordering the County Council not to adopt the Structure Plan Third Alterations unless modified in accordance with the Direction. However on the 8th April 2005 the County Council issued a cross-party statement indicating that it did not wish to accept the Direction. The consequence was that the County Council did not pursue the plan to adoption.
35.	In December 2005 a Consultation Paper on a new Planning Policy Statement 3 (PPS3) was published and in June 2006 the Draft Regional Spatial Strategy for the South West 2006 to 2026 was published. Again, where relevant, I will refer to those documents later in this judgment.
36.	In formulating the Local Plan, the Defendant was under a statutory duty to have regard to regional or strategic planning guidance - see section 12(6) Town and Country Planning Act 1990. It is to be noted that in this context that this means that the Defendant was obliged to have regard to PPG3, RPG10 and the Structure Plan Second Review. It is also conceded, quite properly, that the contents of draft PPS3 were a material consideration for the Defendant in formulating its Plan. The draft RSS, of course, was published after the Plan had been adopted. 

Grounds of Challenge
37.	I am grateful to the parties for the clarity with which the grounds have been formulated and resisted. I propose to deal with each ground in turn.

Ground 1
38.	In summary, the Claimant alleges that the Defendant failed to have regard to relevant national planning policy when it decided to include the Shurdington site and the M & G Sports Ground site in its housing allocation in the Local Plan.
39.	The starting point for this ground of challenge is PPG3. Paragraph 34 of PPG3 reads as follows: -
“Sufficient sites should be shown on the plan’s proposals map to accommodate at least the first five years (or the first two phases) of housing development proposed in the plan. Site allocation should be reviewed and updated as the plan is reviewed and rolled forward at least every five years. Local Planning Authority should monitor closely the uptake of both previously developed and greenfield sites and should be prepared to alter or revised their plan policies in the light of that monitoring. However, it is essential that the operation of the development process is not prejudiced by unreal expectations of the developability of particular sites nor by planning authorities seeking to prioritise development sites in an arbitrary manner.”
40.	As I have indicated, in December 2005 a draft replacement of PPG3 was published, namely PPS3. Under the heading “Allocating and Releasing Land for Housing” the following advice was given:
“Site allocation development plan documents should always include at least five years of supply of land for development from the date they are adopted. The five years supply should be allocated land that is developable, taking account of a windfall allowance where this is appropriate (see paragraph 14). To be considered developable, a site should meet the following criteria:
(a)	available – the site is available now or is likely to become available for housing development and be capable of being developed within five years. This means five years from the date of adoption of site allocation development plan document;
(b)	suitable – the site offers a sustainable option for development and would contribute to the creation of sustainable urban and rural communities;
(c)	viable – housing development is economically viable on the site.”
41.	In the light of that policy guidance, Mr Peter Village QC, on behalf of the Claimant, made the following submissions. At the time of its adoption there was but five years remaining in the life span of the Local Plan. The Plan specified in policy HOU1 that 3579 dwellings were to be provided within the plan period. Of that number, the Shurdington site and the M & G Sports Ground site were intended to provide 710 dwellings. However as the policy HOU1 itself makes clear those two sites are to be phased to the period 2007-2011 and no planning permission was to be granted in respect of those sites until (in the case of M & G Sports Ground there had been a comprehensive review of the Green Belt) and in the case of the Shurdington site until it had been identified as an appropriate location for strategic development through the RSS process.
42.	Mr Village QC submitted that, as a matter of fact, there was no real possibility that the two sites could be developed within the period 2007-2011.
43.	He seeks to make good that submission in the following way. Firstly, the Defendant acknowledged that the inclusion of the Shurdington site within the housing allocation was not intended to pre-judge the RSS process. The timing of the RSS process is beyond the control of the Defendant. The RSS is a document prepared by the Regional Assembly. There are many objections to it and those objections are to be considered by an independent panel at an examination in public which commences within the next few months. In the words of Mr Village QC it is completely unknown what the final form of the RSS will be and what the implications for the Shurdington Site may be.

44.	Leading Counsel next points to the fact that even if the Shurdington site is shown to be an appropriate location for development after the RSS process there is a further hurdle to its development. That is the fact that the Defendant has acknowledged that the Shurdington site should be developed as part of a joint process with Cheltenham Borough Council.
45.	Mr Village QC also relies upon the Defendant’s response to an objector to the Shurdington site who suggested that houses should be built in other locations. The Defendant rejected the possibility of “other locations” for the following reasons:
“There are no other suitable sites available at this stage which will accommodate these 360 dwellings…….The various sites mentioned by objectors as other suitable locations in which to put the development are bound up with future processes such as the probable disposal of RAF Insworth (which may take place after 2008) or the Regional Spatial Strategy which will involve a review of Green Belt in order to identify major strategic growth locations for the period 2026. The RSS is unlikely to be adopted before mid 2007. None of these dates are early enough to provide options for delivering housing allocated for the period to 2011.”
This passage appeared in the Defendant’s Report on the responses to the Second Proposed Modifications to the plan which was published in September 2005. Mr Village QC submits that even that at date, in the light of the passage quoted, it was clear to the Defendant that the Shurdington site could not be developed within the appropriate time frame.
46.	He further submits that the same process of analysis is equally applicable to the M & G Sports Ground site although, of course, the problem of a joint development with Cheltenham Borough Council does not arise for that site.
47.	If, as is contended, there is no real possibility that these sites can be developed within the period 2007 to 2011 the further submission is made that their inclusion within the Plan flies in the face of the national and draft national policies to which I have referred.
48.	What is the Defendant’s response? I refer first to the Witness Statement of Mr TW Clempson who is the Defendant’s Principal Planning Officer for Local Plans. His evidence as it relates to the first ground of challenge is set out in paragraphs 51 to 64 of that Statement. In it he acknowledges the policy guidance to which the Claimant refers and accepts its materiality. The thrust of Mr Clempson’s evidence is that such advice has been followed. He makes the following points in terms of the details of the grounds of challenge. Firstly, he argues that although the RSS is still in its emerging stages a Green Belt review has taken place. That being so the constraint upon development of the M & G Sports Ground site specified in Policy HOU1 no longer subsists. So far as the Shurdington site is concerned, Mr Clempson says that the site has been identified in the Draft RSS as a potential housing site. In effect, he asks the Court to draw the inference that the site will remain within the RSS when adopted. He also asserts that while it is the Defendant’s preference that the development of this site should be part of a joint process with Cheltenham Borough Council “the point remains that there is no reason why the housing should not be delivered in isolation if this is not possible.”
49.	In their Skeleton Argument on behalf of the Defendant, Mr Clarkson QC and Ms Leventhal concede that the Defendant are under a statutory duty to produce a local plan which will identify the required number of housing sites for the plan period. To use their phrase:
“It was not an option to fall short.”
50.	Much of the argument put forward on behalf of the Defendant both in writing and orally related to whether or not the Defendant’s policy of phasing two sites for the period of 2007-2011 was lawful. I agree with Mr Village QC, however, when he said in his submissions in reply that the Claimant has never sought to suggest that a policy of phasing was unlawful. The Claimant’s point, to repeat, is that the two sites phased to 2007-2011 are simply not capable of being developed within that time scale. It is upon that basis that the Claimant alleges that the Defendant has acted unlawfully. 
51.	In deciding whether or not a site or sites can be developed within a particular time frame a local authority is exercising judgment. In part, no doubt, it is a judgment based upon matters properly relating to planning. It is based also upon factors which are not strictly related to planning but which are closely connected to it. In my judgment, a Court has no power to review the exercise of that judgment unless it can be demonstrated that the judgment is unreasonable or irrational in the Wednesbury sense.
52.	The Defendant first included the Shurdington site and the M & G Sports Ground site in a draft plan in May 2005 when there were six years remaining in the plan period. At that stage it was suggested that the sites would be subject to phasing for the period 2007/2011 and it was clearly contemplated that the Shurdington site would be considered in conjunction with any proposals which might emerge through the RSS process for the development of land within the area of Cheltenham Borough Council. It does not seem to me that there is any basis for saying that the Defendant’s inclusion of the site within the draft plan at that stage was unreasonable or irrational on the grounds that even then it was clear that the sites could not be developed within the lifetime of the plan.
53.	As I have said the inclusion of the Shurdington site, in particular, provoked fierce opposition. The Claimant relies, heavily, upon what the Defendant said in response to an objector who suggested that sites alternative to Shurdington and M & G Sports Ground should be considered. I refer, of course, to the response to the effect that the RSS was unlikely to be adopted before mid 2007 and that being so it was unlikely that new options for delivering housing allocated for the period 2011 could be considered.
54.	In my judgment that response should not be read out of its context. The response was indicating the difficulty of considering new options in the light of the likely timescale for the RSS. It was not suggesting that the two sites in question were incapable of being delivered within the timescale of the plan. It does not seem to me that this response would permit me to say that the Defendant was unreasonable or irrational in maintaining the inclusion of the two sites within the draft plan as at about September 2005 when the response relied upon was published.
55.	However, the issue of whether or not the Shurdington site and the M & G Sports Ground site could be developed within the timescale of the plan was raised, fairly and squarely, by the Claimant as one of its objections to the proposed Third Modification to the Plan. 
56.	I have set out the terms of the objection above. The objection was made, of course, in early 2006. By that date there was but one year before the commencement of the phasing period. Yet, as the Claimant pointed out, there was a need for “major events” to take place and be resolved before implementation of the allocation could begin.
57.	Even at this stage, of course, it was a matter for the judgment of the Defendant as to whether implementation was reasonably possible. What did the Defendant say about this?
58.	Firstly, it was to be expected that it would respond to the objection in its Report on the responses to the Third Proposed Modifications. I have set out its actual response above. In my judgment, the Defendant said nothing which suggested that it had addressed its mind to whether or not the allocation of housing upon the two sites could be implemented within the period 2007/2011. The response does nothing more than repeat the assertion (which is not contested), that it was lawful to have a phasing policy and by so doing the implementation of the local plan would not prejudice the emerging RSS strategy.
59.	Also in that document the Defendant responded to the Claimant in relation to its specific objection to the inclusion of the Shurdington site. The Defendant said this:
“The site is immediately adjacent to the part of the Cheltenham built-up area (Brizen Lane). There is also an area of unallocated land adjacent to the site, however the policy makes the relationship clear. The emerging RSS does identify a non-green belt site on the southern edge of Cheltenham for 1,000 dwellings, half in Cheltenham and half in Tewkesbury Borough, so there are reasonable expectations that the site will come forward and that it would be developed on a joint basis by the two authorities.”
60.	Again, in the same Document the Defendant responded to the suggestion by Cheltenham Borough Council that the Shurdington site should only be developed as a joint exercise by saying that the reason for the phasing arrangement was to enable such a joint development to take place.
61.	On the basis of those responses it seems to me that the Defendant was inviting the inference that the Green Belt review and RSS strategy were not obstacles to the implementation of the phrased housing allocations. It was also saying, in terms however, that it was anticipated that the allocation at Shurdington would be implemented as part of a joint exercise with a neighbouring local authority.
62.	In Mr Clempson’s witness statement in relation to Shurdington, he suggests that although it is the Defendant’s preference that there should be a joint working with Cheltenham Borough Council, if that is not possible there is no reason why the housing should not be delivered in isolation. As I understand it this point is made for the first time in that witness statement.
63.	This judgment is being handed down in March 2007. The phasing period 2007-2011 has, in consequence, began. The reality is that the Defendant has put in no evidence which provides any basis for a conclusion that either the M & G Sports Ground or the Shurdington site will be granted planning permission in the near future or that the housing allocations anticipated upon those sites will be implemented in full in the period 2007 to 2011.
64.	I remind myself that the issue for my determination is whether the Defendant, as a matter of judgment, was entitled to conclude when this local plan was adopted that its phasing arrangement would come to fruition. Only if that judgment was irrational or unreasonable can it be said that the Defendant was acting unlawfully in the sensing that it was ignoring or failing to have regard to material policy guidance.
65.	The reality is that the uncertainties which the Claimant highlighted as to  implementation existed in much the same form when it objected to the proposed Third Modifications and when this plan was adopted.
66.	One of the ways in which it is possible to judge whether a local planning authority is making a judgment which is unreasonable is to see how it responded to objections to that judgment. In its response to the Claimant’s objection to the Proposed Third Modifications the Defendant simply did not deal with the issue of whether or not the relevant housing allocations could be implemented.
67.	I have reached the conclusion that the Defendant’s judgment as to the implementation of the housing allocation on the Shurdington site was unreasonable or irrational in the Wednesbury sense. The Defendant failed to have regard to clear policy guidance contained within PPG3 and the draft policy guidance within PPS3. On balance, I think that the same is true for the M and G Sports Ground site. I say that since even though it is asserted that the Green Belt review has taken place and that there was no bar to implementation following that process the absence of reasons for including the site in the face of the Claimant’s  specific objections lead to the conclusion that bars to implementation do exist. PPG 3 paragraph 34 is very clear in its terms and I simply do not see how the Defendant can have taken account of it when it maintained these two allocations.
68.	Even if I am wrong about that, an issue arises as to the adequacy of the reasons given for rejecting the Claimant’s objections to the Proposed Third Modifications.
69.	It is common ground that the Defendant was under a duty to give reasons in relation to its decision to reject the Claimant’s objections to the Proposed Third Modifications. In Save Britain’s Heritage v Number One Poultry Limited [1991] 1WLR 153, the House of Lords held that such reasons should be “proper, intelligible and adequate”. In his speech, Lord Bridge highlighted the difficulty which faces a Court in deciding upon whether or not the reasons given are adequate. He said this:
“The difficulty arises in determining whether the reasons given are adequate, whether, in the words of Megaw J (in Re Poyser and Mills’ Arbitration (1954) 2 QB 467) they deal with the substantial points that have been raised or in the words of Phillips J in Hope v Secretary of State for the Environment 31P&CR 120, 123, enable the reader to know what conclusion the decision maker has reached on the principal controversial issues. What degree of particularity is required? It is tempting to think that the Court of Appeal or your Lordships’ House would be giving helpful guidance by offering a general answer to this question and thereby “setting the standards” but I feel no doubt that the temptation should be resisted, precisely because the Court has no authority to put a gloss on the words of the statute, only to construe them. I do not think one can safely say more in general terms than that the degree of particularity required will depend entirely on the nature of the issues falling to decisions.

Whatever may be the position in any other legislative context, under the planning legislation, when it comes to deciding any particular case whether the reasons given are deficient, the question is not to be answered in vacuo. The alleged deficiency will only afford a ground for quashing the decision if the Court is satisfied that the interests of the applicant have been substantially prejudiced by it. This reinforces the view I have already expressed that the adequacy of reasons is not to be judged by reference to some abstract standards. There are in truth not two separate questions: (1) were the reasons adequate? (2) if not, were the interests of the applicant substantially prejudiced thereby? The single indivisible question, in my opinion, which the Court must ask itself whenever a planning decision is challenged on the ground of a failure to give reasons is whether the interests of the applicant have been substantially prejudiced by the deficiency of the reasons given. Here, again, I disclaim any intention to put a gloss on the statutory provisions by attempting to define or delimit the circumstances in which deficiency of reasons will be capable of causing substantial prejudice, but I should expect that normally such prejudice will arise from one of three causes. First, there will be substantial prejudice to a developer whose application has been refused or to an opponent to the development when permission has been granted when the reasons for the decision are so inadequately or obscurely expressed as to raise substantial doubt whether the decision was taken within the powers of the Act. Secondly, a developer whose application for permission is refused may be substantially prejudiced where the planning considerations on which the decision is based are not explained sufficiently clearly to enable him reasonably to assess the prospect of succeeding in an application for some alternative form of development. Thirdly, an opponent of development, whether the local planning authority or some unofficial body like Save, may be substantially prejudiced by a decision to grant permission in which the planning considerations on which the decision is based, particularly if they relate to planning policy, are not explained sufficiently clearly to indicate what, if any, impact they may have in relation to the decision of future applications.”

70.	As I have said, in its response to the inclusion of the two sites at the stage of the Proposed Third Modifications the Defendant failed to deal with the Claimant’s objections that the housing allocations in question could not be implemented within the plan period. In my judgment that point was at the heart of the objection made by the Claimant at that stage. There was a complete failure to deal with the point.
71.	Were the interests of the Claimant substantially prejudiced by the deficiency of reasoning which I have identified? It seems to me that they were. In this context the Claimant is to be regarded as an objector to development but an objector who has interest in promoting housing development upon an alternative site. Following the conclusion of the oral submissions before me, Mr Village QC sent to me a short written representation in which he explained why the Claimant’s interest would be prejudiced if the relevant policies of the plan were not quashed. I accept Mr Village’s analysis as contained in that document and it seems to me that it applies with equal force whether the challenge is based upon the failure of the Defendant to have regard to material policy considerations; whether the decision of the Defendant to include the two sites for housing is categorised as unreasonable or irrational; or upon the Defendant’s failure to give adequate reasons for its decision.
72.	In my judgment, therefore, ground 1 of this challenge is made out and, in consequence, I propose to make a quashing order in  respect of those parts of the plan which include the Shurdington site and the M &G Sports Ground site as sites for housing development and, of course, any parts of the plan which should be deleted as a consequence.

Ground 2

73.	In the light of the conclusion in Ground 1 I can deal with Ground 2 quite shortly. Ground 2 is a challenge to the inclusion of the Shurdington site on the basis that the Defendant has failed to give adequate reasons as to why it ultimately rejected the Inspector’s recommendations in relation to that site.
74.	In paragraph 5.6 of the Skeleton Argument Mr Village QC and Mr White set out those parts of the Inspector’s report which gave the reasons why she recommended that the Shurdington site should be included in the Plan. Those extracts are accurately summarised by counsel in paragraph 5.6 itself.
75.	The requirements upon a local planning authority when dealing with an Inspector’s report into a local plan are spelt out in Miller and Others v Wycombe District Council (1997) JPL 951. At pages 955/6 Pill LJ stated:

“The Council were required to make their decision in light of the Inspector’s report and recommendation and to give reasons for their decision. It was incumbent upon the Council, in my view, to demonstrate that minds had been applied to the Inspector’s report, the recommendations and findings which led to it. Specific consideration of his findings was required. In their remarks the council recite a series of assertions as to why it was necessary, in their view, to apply policy L3 to the site. One of the remarks, that in relation to views within the area itself, actually conflict with the concession which the inspector records the council having made at the inquiry. The council ignore the entirety of the inspectors’ findings and make no attempt to deal with them.

In my judgment they have failed to deal with the substantial points raised by the independent Inspector. They do not either express reasons for disagreeing with his findings or give a reasoned explanation for ignoring them in favour of other considerations which they consider important. 

In the context of the statutory procedure for an adoption of a local plan, the failure is a substantial flaw in the decision- making process. The owners are substantially prejudiced in that they were entitled to expect that the Inspector’s findings would be considered and reasons given for departing from them before a decision was taken to subject their land to policy L3.”

In this case, of course, the Defendant initially accepted the recommendations of the Inspector and deleted the Shurdington site from the plan. In my judgment, however, when they altered that decision and decided to include the site within the Plan it was incumbent upon the Defendant to demonstrate that it had applied its mind to the Inspector’s report and dealt with the substantial points raised by the Inspector as to why the site should not be included.
76.	In the Skeleton Argument of Mr Clarkson QC and Ms Leventhal they assert that the Defendant revealed its process of reasoning and judgment in the Response report on Proposed Modifications of May 2005 and subsequent reports on further proposed modifications. They submit that all relevant matters were assessed and reasons given. The inclusion of the Shurdington site (which was reduced in size from the site originally included within the Draft Plan) was “the product of recognising that this was a better site than any other proffered in the circumstances prevailing at the time the choice was made.” Mr Clarkson QC submitted, orally, that the reasons given for inclusion were both intelligible and adequate.
77.	In paragraph 19, 21 and 22, I set out the relevant extracts from the document which contained the reasons given by the Defendant. I accept that a comparison of that material with the Inspector’s reasons for recommending against the inclusion of the site will show that the Defendant did not deal with every single point she made. In my judgment, however, the issue is whether or not it dealt with her principal criticisms of the site. In my judgment it did. The extracts set out above clearly demonstrate why it was that the Defendant, as a matter of planning judgment, had changed its mind in relation to this site and why it was that it was proposing to take a course which conflicted with the Inspectors’ recommendations.
78.	Ultimately the strength of this ground can be assessed only by reading the relevant parts of the Inspector’s report and then seeing whether her principal concerns are addressed in the material to which I have referred. To repeat, when that exercise is done I cannot conclude that there has been a failure on the part of the Defendant to explain its decision.

Ground 3.

79.	The Claimant alleges that the Defendant failed to provide proper, adequate and intelligible reasons for its decision not to include Homelands Farm within the housing allocations of the Local Plan. It seeks to challenge that decision by way of judicial review.
80.	The Defendant’s reasons for the non-inclusion of Homelands Farm are set out in paragraph 12 above. In my judgment those reasons are obviously proper, intelligible and adequate. It should be remembered that the Inspector did not recommend that Homelands Farm should be included within the Housing Allocations within the Plan. Rather she suggested that it should be included within the assessment exercise which she recommended. The Defendant acceded to that recommendation but nonetheless concluded that the site should not be allocated for housing. The reasons why it reached that conclusion are clearly set out – see paragraph 12 above.

81.	It is to be noted that one of the reasons given by the Defendant for its decision not to include the site was the views expressed by the Panel which conducted an examination in public upon the Gloucestershire Structure Plan Third Review. Mr Village QC submits that when the Government Office for the South West issued a Direction requiring certain policies of the Structure Plan to be modified and, in consequence, Gloucestershire County Council resolved to abandon its Third Review, the opinion expressed by the Panel became irrelevant. In the Claimant’s Skeleton Argument the point is put in this way:

“The effect of abandoning the Review is that the Adopted Structure Plan Second Review remains the “saved” Structure Plan until 2007 and the draft policies of the Third Review do not, as matter of law, exist and the subsequent EIP panel report should be given no material weight Further, the statutory development plan includes the adopted Structure Plan Second Review.”
82.	As a matter of fact, Gloucestershire County Council did not take its decision to abandon the Third Review of the Structure Plan until July 2005. The Defendant first indicated its unwillingness to include Homelands Farm as a housing allocation within its plan in June 2004. At that time, of course, there could be no doubt but that it was entitled to rely upon the views of the panel as a material consideration.
83.	It is clear from extract at paragraph 12 above, however, that the Defendant regarded the view of the panel as confirming a conclusion which it had reached about Homelands Farm. The Defendant had concluded that this site was one of those which could be categorised as “leaping the Green Belt”. That was a point specifically raised by the Inspector. It seems to me that the Defendant’s reliance upon the Panel’s report related only to this point. To use the Defendant’s own words the point had acquired “added weight” following the publication of the Panel’s report.
84.	As I have said Gloucestershire County Council abandoned the Structure Plan Third Review in July 2005. This coincided with the period afforded for objection to the Proposed Second Modifications of the Plan. I have scrutinised the objections made by the Claimant to the Proposed Second Modification and I can find no specific reference to the County Council’s abandonment of the Third Review and its significance, if any, in planning terms. It is possible, of course, that the Claimant did raise the topic in material which is not before me or, indeed, at the time of its representations to the Defendant the decision of the County Council was not known.
85.	In any event the Defendant dealt with the objections raised to the Shurdington site. Whilst in its consideration of the objection it relied upon the GOSW direction it made no reference to the views of the Panel.
86.	The Defendant did make reference to the views of the Panel when dealing with the Claimant’s objection to the inclusion within the local plan of sites which the Claimant was suggesting were within the Green Belt. In response to the points made by the Claimant that there were sites outside the Green Belt which should be included within the plan the Defendant said this:
 “North of Bishop’s Cleeve was rejected by the EIP panel and GCC as being part of the Cheltenham PUA.” 
That extract appears in the Report on the Responses to the Second Proposed Modifications to the Plan which was published in September 2005.
87.	It does appear, therefore, that at a point in time after the Gloucestershire County Council’s decision to abandon the Third Review the Defendant was at least, in part, relying upon the views of the Panel in relation to its consideration of Homelands Farm. The Claimant’s skeleton contains material which supports the view that the Defendant was also relying upon the views of the Panel at the time of the Third Modifications.
88.	I accept the written submissions of Mr Clarkson QC and Ms Leventhal which are to the  effect that the Panel’s view was invoked only to give “added weight”  to a view which had been formed by the Defendant as to the suitability of Homelands Farm for inclusion within the Plan. In my judgment the Defendant has held the view consistently that Homelands Farm should not be included. It has not failed to give adequate reasons for that view.
89.	It might be said, of course, and Mr Village QC was close to saying it in his oral submissions, that the substance of this point is not a failure to give adequate reasons but rather an allegation that the Defendant has taken into account material which was irrelevant. 
90.	I do not regard the views of the Panel as an irrelevant consideration even after the abandonment of the Third Review. I do not see, however, how the abandonment makes the planning judgment of such an experienced body as the Panel irrelevant to a consideration of planning merits.

91.	Mr Clarkson QC submits that it was the underlying formal policy of RPG10 in concentrating on principal urban areas as sustainable which was the firm base for rejecting Homelands Farm. Whether “weight” was added or not by the Panel’s report was not crucial to the decision. In my judgment, that submission is also correct although, to repeat, in my judgment the Defendant was entitled to afford some weight, if it chose, to the views of the Panel notwithstanding the abandonment of the Third Review.
92.	Even if I am wrong in the conclusion that the Defendant was entitled to continue to give some weight to the views of the Panel, I am very firmly of the view that the taking into account of this material should not lead to a successful claim for judicial review. It is now well established that relief should be granted only if there was a real possibility that the decision in issue would have been different had the irrelevant material not been considered. In this case there is no basis whatsoever for concluding that the Defendant would have reached a different conclusion about Homelands Farm had it excluded from its consideration the views of the Panel.
93.	As a matter of form, I would grant permission on this aspect of the claim for judicial review but I dismiss the application on the merits so far as this ground is concerned.

Ground 4.

94.	Following the receipt of the Inspector’s report the Defendant published proposed modifications to the plan. That occurred in June 2004. On the 13th August 2004 the Claimant made a series of objections to the Proposed Modifications. In a letter which enclosed those objections it said that it was the Claimant’s opinion that an inquiry into the modifications should take place. In the specific objection which related to housing policy HOU1 the objection concluded:
“Furthermore, it is George Wimpey’s request that the Proposed Modifications should be subject to a re-opening of the Tewkesbury Local Plan Inquiry in order to thoroughly examine this major and inappropriate shift in the local plan’s strategy which is  contrary to PPG2 and to the Structure Plan.”
95.	The Defendant published its Response Report on Proposed Modifications in May 2005. In considering the objections of the Claimant to Policy HOU1 and its request for the re-opening of the Inquiry the Defendant commented:
“No need to re-open the inquiry as issues already addressed.”
96.	The Defendant gave consideration to whether there was a need to re-open the Inquiry at its Special Environmental Committee and in Full Council. It is clear that a decision of the High Court upon the topic of re-opening Inquiries was discussed and the substance of that decision was reported as follows:
“The fact that a proposed modification involves issues which have not previously 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 will generally be material to that decision would include:
(1)	whether or not the issues raised have been previously subject to independent scrutiny by an inspector so as to provide independent evaluation of the opposing contentions;
(2)	the current advice (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 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 interest of all relevant parties …..”
The case to which the attention of the committee and full council was drawn is the decision of Mr Robin Purchas QC sitting as a Deputy Judge of the High Court in Drexfine Holdings Limited v The Cherwell District Council (1998) JPL 361. In that case, the learned Deputy Judge held that the local authority in question had acted unlawfully in its decision to refuse to hold a further inquiry and he set out the factors which were relevant to a consideration of whether of not the authority had acted unlawfully. The factors enumerated by the learned Judge were those which are set out in the preceding paragraph.

97.	It is clear that the reason given by the Defendant for its refusal to hold a second inquiry was but one of many aspects which were discussed by the Special Committee and Full Council. Mr Clempson, in paragraph 86 of his Witness Statement, says that the Defendant had regard to all of the matters elucidated in Drexfine before it reached the decision not to hold a second inquiry or re-open the inquiry.
98.	Mr Clempson also points out that the request for a further or re-opening of the inquiry was never made again by the Claimant after the Defendant had indicated its refusal in May 2005.
99.	I remind myself, in relation to this Ground, that the Claimant needs permission to apply for judicial review. In my judgment I should refuse permission. I am completed satisfied on the evidence that the Defendant had regard to all material considerations when it made its decision not to re-open the inquiry. I adopt what is said in the Defendant’s Skeleton Arguments:
“A balance clearly had to be struck in this decision between the limited benefit to the Claimant, and to the decision making process generally, of raising its concerns at an inquiry rather in written representations to TBC (the Defendant) and the countervailing factors pressing upon TBC to continue progressing the TBLP [The Plan] (including fairness to all other parties involved). In this context, TBC’s decision not to hold a second inquiry was an entirely reasonable one and it cannot be said that the matters that the Claimant raised could not be reasonably be viewed as being suitable for consideration for written representations.”

Conclusion
100.	I propose to grant a quashing order in relation to those parts of the Local Plan which include the M & G Sports Ground site and the Shurdington site as housing allocations. No doubt Counsel will agree an appropriate draft to reflect that which can be considered at the handing down if it is contentious. I propose to make such an order under Section 287 Town and Country Planning Act 1990. I dismiss the claim for judicial review.