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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 >> Martin Grant Homes Ltd & Anor, R (on the application of) v Wealden District Council [2005] EWHC 453 (Admin) (04 March 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/453.html Cite as: [2005] EWHC 453 (Admin)

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

		Royal Courts of Justice Strand London WC2
		4 March 2005

1. MR JUSTICE COLLINS: The claimants in these proceedings seek to quash the decision of the defendant Council taken on 19th May 2004, the effect of which was to abandon the statutory processes relating to the Wealden Local Plan, to produce a revised non-statutory plan, and to commence work on the Local Development Framework ("LDF") required by the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") which had received Royal Assent on 13th May but had not yet come into force. The material parts of the Act were not in fact brought into force until 28th September 2004.
2. The 2004 Act has made a fundamental reform to the old system of development plans. Putting it very broadly, structure plans are abolished. Regional spatial strategies are to be prepared and are to be implemented by Regional Planning Boards. The concept was linked to, but is not dependent on, the idea of regional assemblies. Local planning authorities such as Wealden have to produce a local development scheme. Within that scheme are local development documents. Of those, some are designated local plan documents. These will go through a statutory process, including consideration by an inspector at an inquiry if needed, and so will carry special weight in considering planning applications. Other documents will resemble non-statutory plans or supplementary planning guidance and will not carry the same weight.
3. Although the Act refers to a scheme, the pre-Act guidance has talked about a Local Development Framework, and that label has stuck. It has three elements, consisting of a core strategy, a proposals section with a proposals map, and area action plans for key areas of change or conservation. How all this will settle down in practice, and what are to be included as development plan documents, will be determined in due course. Fortunately, this claim does not require investigation into those matters.
4. The claimants own land at Uckfield in East Sussex. The site is not allocated for housing in the current local plan, but the structure plan looks to an additional 3,300 homes within the Wealden district to be provided by 2011, and directs that the bulk of them should be located in what are described as the Low Wealden towns, such as Uckfield. The claimants are convinced that their site is appropriate for such development. As long ago as May 2000, when it was appreciated that a new local plan was to be prepared, the claimants entered into discussions with the Council on the basis that their site was one of the sites which was appropriate. That site was included in the First Deposit Draft of the Wealden Local Plan Review, published in January 2003. Following further consultation and representations, the Council determined on 29th March 2004 to remove the claimants' site and to substitute two other sites. All three were greenfield sites. It is not necessary to go into further detail. Suffice it to say that the claimants were confident that they would be able to persuade an inspector, who would in due course have considered the local plan under the 1990 Act procedure, of the merits of their case. Their concern is that the abandonment of the 1990 Act procedure has deprived them of the opportunity to have their case tested and, as Mr Village put it, if what is now proposed is allowed to proceed, the pass will have been sold and the non-statutory plan will be used to justify the grant of planning permission for major housing development on the other sites to the prejudice of the claimants.
5. In October 2003 Wealden had, following discussions with the Government Office for the South East ("GOSE"), received a letter setting out what GOSE indicated were the various options to be adopted by Wealden in the light of the proposed new legislation. That letter included this:

"I am very aware of the political pressures and community interest that you face in proceeding with your emerging review of the Local Plan. As you are aware, the Government is committed to changing fundamentally the development plan system with its proposed Local Development Framework (LDF) regime. The Government expects local authorities to have an LDF in place during 2007 or within three years of the adoption of a plan if the plan is adopted post commencement of the new Act. This is anticipated to be in June/July 2004. As we discussed, your Council therefore faces an important decision on how or whether to progress with the current emerging Local Plan.

"I am grateful for the Local Plan timetable that you provided, although my colleagues in planning are concerned that it suggests that the Plan might not be adopted until 2008 and that it would then only apply for the period until 2011. I appreciate that this may be a worse case scenario but, if this were to be the case, I would be concerned that your Council may be open to criticism in its Comprehensive Performance Assessment and any Best Value review of the Planning service. It could also affect the level of any Planning Delivery Grant awarded. Furthermore, and as you are aware, the absence of a Local Plan may put your Council at risk from speculative proposals for the release of greenfield land for housing."

6. The reference to the Planning Delivery Grant is to be noted. Mr Village has described it as a veiled threat, and it does appear from later advice given by the officers to the relevant committees that it was a matter which the Council had in mind in deciding on the course that they should adopt.
7. Three options were put forward in the letter. The first was described as progressing more quickly with the emerging local plan, suggesting that there should be a streamlining. The second was twin tracking an LDF with the local plan, which in fact the Council had itself raised as a possible way ahead. It was pointed out that there might be resource benefits by using what was put as a new robust evidence base, but there were risks, including the potential for confusion and the ability of the Council to deliver two plans. The third option was to abandon the emerging local plan and to prepare to produce an LDF by 2007.
8. The Council had to decide what was the appropriate way ahead and they had a meeting of their Special Review Committee on 15th December 2003. The report to the Council for that meeting contained the following material observations. Incidentally, it was a fact that there had been a large number of objections made to the draft local plan. In paragraph 4.2, under the heading "Transition to Local Development Frameworks", this is said:

"However, the Government's transitional arrangements are such that when an authority has published a First Deposit Draft Plan and will require an inquiry (ie has unresolved objections), it must complete that plan under current arrangements. The LDF will subsequently be prepared within 3 years after the adoption of the Local Plan. Consequently, with the replacement Wealden Local Plan programme running up to 2007/08 before adoption, the Government's concern over the delay in the preparation of the LDF can be understood, even though its own transitional arrangements have placed us in that situation."

9. Of course at that stage the transitional arrangements were those proposed in the bill. It still had not completed its Parliamentary progress and it was by no means certain that the transitional arrangements would remain as in the bill. In fact, as it turned out, they did.
10. In paragraph 5.1 this is said:

"GOSE has reminded the Council of the need to have a ten year plan period from adoption. Its concern is the maintenance of an adequate supply of land for housing. It recognises the Structure Plan only provides guidance until 2011. The only guidance at present beyond 2011 is through the existing Regional Planning Guidance (RPG9) which, in the absence of other guidance, puts forward a straightline projection of existing growth. The outcome of complying with this guidance now through either the Local Plan or LDF route is that it would imply considerable growth in terms of many thousands of new dwellings for Wealden between 2011 and 2016."

11. In 5.6 this is said:

"A further important point in the consideration of whether to extend the plan period to 2016 now through the Local Plan is one of further delay in making decisions for the period 2006 to 2011. To properly plan for the period to 2016 would entail firstly deciding upon an appropriate level of growth in the context of existing Regional Planning Guidance and secondly allocating appropriate sites for housing, business and other uses including appropriate infrastructure provision for 2011 to 2016. Such a major exercise would considerably delay the production of the Revised Deposit Draft Plan which would further jeopardise the proper planning and implementation of the planned growth to 2011, increasing the chance of ad hoc planning applications being lost at appeal. A similar situation would arise if the Council abandoned the draft Local Plan and moved to an LDF."

12. The conclusions are stated as follows:

"6.1 This Council finds itself, through no fault of its own, in a difficult predicament with regard to forward planning in the District.

6.2 From being an authority which meets all the national development plan performance criteria with an adopted Local Plan and a Review under progress, it is moving into a situation where it will only partially meet the new targets and may suffer a reduction on the level of any Planning Delivery Grant awarded in future years and be open to some criticism in its Comprehensive Performance Assessment."

13. As I said earlier, the Council clearly recognised the possibility that if they did not do what GOSE thought was appropriate they ran the risk of the possibility of reduction in the Planning Delivery Grant.
14. The recommendation which was adopted was that the Council should confirm its previously made decision in September not to extend the plan period in the revised deposit draft local plan, to continue expeditiously the local plan programme, as approved at that September meeting, and to twin track an LDF with the current local plan review in advance of the adoption of the replacement local plan, with a timetable to be informed by further guidance and further consideration of resource and timing issues through the preparation of the local development scheme. The reason for that is stated as being in order to progress expeditiously the review of the Wealden Local Plan, leading to a replacement plan, and commence work on a new Local Development Framework as soon as possible.
15. On 17th March 2004, again before the Act had received Royal Assent, GOSE wrote again. The letter commenced in this way:

"I am writing about your Council's programme for the Wealden Local Plan Review and preparation of a Local Development Framework (LDF) under forthcoming planning legislation. I believe that [the person concerned] has already discussed some of the content of this letter with you when he visited Wealden earlier this month. You and I also discussed the issues and options in October and I understand that your Cabinet in January endorsed the Special Review Committee's decision to produce an adopted Wealden Local Plan Review in 2008 and consider further the programme for an LDF. Our officers have had subsequent discussions and I understand that your Council proposes to start the LDF process in 2005 when we expect updated guidance to be available on housing requirements in the emerging South East Plan.

"As you are aware this programme gives the Government Office considerable cause for concern and I wish to rehearse possible ways of accelerating it."

16. The suggestions made were these:

"To prevent such delay, all districts potentially facing the requirement for additional housing could ensure that allocations on which they consult initially would provide for a house building rate sufficient to meet a possible final South East Plan requirement.

"Although this approach will need careful management, any alternative approach would present potentially greater difficulties. Waiting until the South East Plan is finalised is not an option as this seems likely to leave insufficient time to meet the Government's requirement to get the LDF in place by March 2007, subject to Royal Assent. In Wealden's case this could create a potential opening from 2004 for speculative proposals from developers seeking to meet new South East Plan house building requirements."

17. I interpose that the transitional arrangements provided that a local plan, if it came into being after the commencement of the 2004 Act, would normally have a three-year life, but there was scope for extending it by the Secretary of State if it obviously gave sufficient thought to and provided for a period beyond the three years. Going back to the letter, it continues:

"Turning to the situation in Wealden, you have decided to run the completion of the current Local Plan Review and preparation of your LDF in parallel. This is likely to be very demanding for staff, councillors and other participants in the processes. I accept that if the programmes were accelerated to start the LDF by the middle of this year, and adopt the local plan review more quickly, the pressure on resources would no doubt be even greater. The Council will be considering how best to ensure that resources are allocated for this important task and whether or not the option of diverting resources from the local plan review to allow the LDF to be started and finished on time is a way forward; the Planning Delivery Grant should be of help to you in this process."

18. I interpose again, the veiled threat is clearly there. Going back to the letter:

"At first sight, this approach might appear as abandoning a plan on which much time and money has been spent. However, I understand that your Council has been considering whether the draft plan could be adopted as non-statutory guidance for development control purposes after your Council's consideration of the comments on the second deposit. You would need to obtain your own legal advice on this, but if it is legitimate to rely on a draft plan in this way, your Council may be able to put the plan to effective use quite soon. The weight accorded would be likely to vary between parts of the plan which are uncontentious and not out of date and those on which objections have not been resolved and/or which have been overtaken by events.

"A difficulty with not proceeding to the Public Inquiry would be the understandable frustration felt by objectors deprived of the opportunity to put their case before an independent inspector, particularly when the Council in good faith has encouraged this expectation.

"However, you will be aware, from the transitional advice that the Office of the Deputy Prime Minister issued in June 2003, that once plans in preparation at commencement of the Act have been adopted, they would be 'saved' for a period of three years. If your Council decided, therefore, to pursue the local plan, it would quite quickly need to replace it with an LDF. I believe that in this context it should be possible to explain to those with an interest in the planning of the district that their efforts would be best channelled into involvement in an early LDF dealing with the full scope of options that will have to be considered to meet South East Plan requirements."

19. This led to a further meeting of the Council's Cabinet on 5th May 2004. A lengthy and detailed report was provided. The recommendation which was adopted was as follows:

"(1) to complete the Wealden Local Plan Review in a way which supports the progression to a Local Development Framework by:

(i) concluding consideration of representations on the First Deposit Draft Plan;

(ii) producing a Revised (non statutory) Draft Plan having regard to the representations on the First Deposit Draft but discontinuing work on the existing statutory draft plan;

(iii) undertaking further public consultations; and

(iv) giving consideration to the representations received and subject to any amendments, producing a Revised (non statutory) Plan to be approved for the purposes of development control.

(2) to commence work on a Local Development Framework subject to a further report detailing timetabling and resource issues."

20. The reasons are set out thus:

"(1) to progress expeditiously the review of the Wealden Local Plan to an appropriate stage where work can then commence on a Local Development Framework in line with the impending Planning and Compulsory Purchase Act and Government Guidance.

(2) In recognition that overall the benefits of proceeding with a Local Development Framework approach outweighs the disadvantages associated with not taking the Local Plan review through to adoption.

(3) It would improve the economic, environmental and social well being of the area by achieving a saving in costs both to the Council and to local residents/landowners in following one and not two statutory processes. It would enable land to be allocated for housing at the earliest opportunity to meet the requirement for housing land (including affordable housing) and reducing the risk of the ad hoc release of land for housing development through planning appeals."

21. Mr Drabble accepted that that second sentence was not entirely appropriate, since clearly there would be ad hoc appeals during the period before any plan, be it a local plan or an LDF, was approved after a statutory inquiry.
22. I do not propose to go into the report in detail which, as I have said, is lengthy, but there are one or two passages in it to which I ought to refer. In paragraph 2.3 it is noted that the Government's transitional arrangements were such that when an authority had published a First Deposit Draft Plan which would require an inquiry to deal with unresolved objections it should complete that plan under current arrangements; and that the LDF would subsequently need to be completed within three years after the adoption of the local plan. Consequently, with the replacement Wealden Local Plan programme running up to 2007/2008 before adoption, the Government's concern over the delay in preparation of the LDF could be understood, even though its own transitional arrangements had placed the Council in that situation.
23. Then, in dealing with the current situation, reference having been made to the second GOSE letter, the comment by the officer was this:

"The message given in the letter essentially firms up GOSE's request that work on the Local Plan Review should be concluded and resources allocated to the early start on an LDF with a ten year time horizon."

24. The report then sets out some seven key reasons which are said to support the approach. First is pressure from GOSE, despite the Government's own transitional arrangements; secondly, pressure from GOSE to ensure an appropriate level of housing, in accordance with the structure plan; thirdly, pressure to extend the plan period to ten years; fourthly, that two major Public Inquiries within about a year of each other would have very significant resource implications. It was pointed out that if an LDF were commenced, say, early in 2005 the examination might be held in the third year, 2007 to 2008, and that there could be as little as six months between two major Public Inquiries. It was said that the first was likely to last for a year and would cost in excess of £400,000, and that there was concern over the potential for confusion in the local community over two such major inquiries and that there was a concern over planning permissions for housing in relation to the timing of the inquiry. The officer concludes:

"Despite there being no statutory requirement, the advice received indicates that carrying out an environmental assessment would add a little weight to the plan and assist in resisting a legal challenge to the plan. However, the officer advice is that the carrying out of such an assessment would be time consuming and would largely negate the advantage of speed in pursuing the non-statutory route."

25. An environmental assessment is required, as I understand it, for the LDF but not for the local plan.
26. Next it is said that in order to meet the structure plan provisions, planning permission would need to be granted for a considerable number of dwellings in advance of receipt of the Local Plan Inquiry Inspector's report. This would question in housing provision terms the need for and effectiveness of the inquiry, as permissions and starts on those dwellings would already have set the scene for the distribution of development in the 2006 to 2011 period. It was pointed out that it might not be considered plausible to delay this grant of planning permission on allocated sites until after the report had been received and, accordingly, the value of the inquiry process was weakened.
27. That point, if it is a good point, would apply of course not only to the local plan but also to the LDF, and there would inevitably be requests for permissions for housing development based on what was thought to be going to happen. It may be, and indeed Mr Village suggests, that more weight would be likely to be given to a non-statutory plan on the process suggested, and indeed adopted by the Council, than if they simply went ahead with the local plan process.
28. I should say too that when dealing with the question of expense Mr Village complains that the Council appears not to have had proper regard to the cost involved in dealing with individual planning appeals and possible applications for judicial review if permission were granted. Obviously they would not be as much as a local inquiry, but they would and could amount to significant costs.
29. The next is that the early commencement of the LDF would allow better and earlier integration with the Community Strategy and stakeholder involvement with spatial planning, both of those being Government objectives. Finally, there is this heading:

"The need to maintain and improve the Council's Comprehensive Performance Assessment and maximise the Planning Delivery Grant."

30. Under that this is said:

"The challenges and difficult decisions facing the Council over reconciling the lengthy Local Plan Review programme with the Government's pressure to commence a LDF are recognised in the Comprehensive Performance Report. Not to act in relation to a start of a LDF could adversely affect the Council's future Planning Delivery Grant."

31. The report then sets out disadvantages. First is the question of the legality of the course of action proposed, and it was said that counsel's opinion had been obtained and that his view was that the Council was entitled and had justifiable grounds for taking the course of action proposed, and that a number of other local authorities across the country, in a not dissimilar position to Wealden regarding their development plans, had taken similar decisions as a way to move forward. It was noted that there were risks that this approach would be challenged and that risk was considered later. Counsel also advised that the wide powers under section 2 of the Local Government Act 2000 would assist and that there would be a saving of cost.
32. The second disadvantage was said to be that less weight would be attached to the Local Plan Review in determining planning applications and that the concern was that it should carry sufficient weight. This is said about counsel's advice:

"Counsel has been asked for its opinion as to the weight that would be attached to the non statutory plan, particularly the weight a planning Inspector is likely to attach to it when considering appeals against the Council's refusal of planning permission for non-allocated sites. Counsel advise that the weight attached to the non-statutory plan would be largely the same as the statutory plan until it reaches the point at which it would otherwise have been subjected to an Inspector's report. Effectively, this means that potentially there will be a period in the order of about one year where the strength of the plan would have been greater had the statutory procedures been followed. There will inevitably therefore be risks that the Council will not be successful in defending some appeals due to less weight being attached to a non-statutory plan by an Inspector."

33. Then there is reference to the public and developers and landowners being denied the opportunity to present objections at an inquiry, and public perception, and the difficulties of explaining this to the general public, many of whom were looking ahead to the Public Inquiry to present their case. It was said that the disadvantages could be seen as less significant because the Council found itself in a position where it might in any event have to grant planning permission for a number of dwellings over the next few years to meet the structure plan provision for 2006 to 2011. Nonetheless, it was accepted that a number of respondents to the Local Plan Review First Deposit Draft Plan were put at a disadvantage.
34. I should say that there are before me a number of objections from others than the claimants, and in particular an objection by one of the parish councils within the district which had wanted to challenge certain aspects of the local plan and which feels that it is wrong that the decision by the Council should prevail.
35. Finally, consideration is given to the likelihood of judicial review and its implications, including delay. It is said that it is considered unlikely that a judicial review could reverse the Council's decision not to conclude the Local Plan Review.
36. Of central importance are the transitional provisions in the 2004 Act. These are contained in Schedule 8 and the relevant paragraphs are paragraphs 8 to 10. I should read those paragraphs:

"8(1) This paragraph applies to proposals for the alteration or replacement of a local plan for the area of a local planning authority.

(2) If before the commencement of Part 2 of this Act the authority have not complied with section 40(2) of the principle Act (making copies of the proposals available for inspection) --

(a) they must take no further step in relation to the proposals;

(b) the proposals have no effect.

(3) In any other case paragraph 9 or 10 below applies."

37. Pausing there, if the emerging local plan has not reached the stage when it has, in accordance with section 40(2) of the 1990 Act, been copied or made available for inspection, then the process must be brought to a halt. But if that has been done, as was the case here, then one looks to see what paragraphs 9 and 10 provide. Paragraph 9 reads as follows:

"(1) This paragraph applies if --

(a) before the relevant date the local planning authority is not required to cause an inquiry or other hearing to be held by virtue of section 42(1) of the principal Act (inquiry must be held if objection is made), or

(b) before the commencement of Part 2 of this Act a person is appointed under that section to hold an inquiry or other hearing.

(2) If this paragraph applies the provisions of Chapter 2 of Part 2 of the principal Act continue to have effect in relation to the proposals."

38. What that means is that if no inquiry needs to be held because there are no material objections to the plan, or if an inspector has been appointed, then the local plan process must continue. That is not the position here because the stage had not been reached where an inspector had been appointed. So one then goes to paragraph 10, which is accepted to be the material provision. This reads as follows, so far as material:

"(1) If paragraph 9 does not apply the provisions of Chapter 2 of Part 2 of the principal Act continue to have effect in relation to the proposals subject to the modifications in subparagraphs (2) to (5) below.

(2) If before the commencement of Part 2 of this Act the local planning authority have not published revised proposals in pursuance of regulations under section 53 of the principal Act --

(a) any provision of the regulations relating to publication of revised proposals must be ignored,

(b) the authority must comply again with section 40(2) of the principal Act [which is the provision of copies, et cetera].

(3) If before the commencement of Part 2 of this Act the local planning authority have published revised proposals in pursuance of regulations under section 53 of the principal Act the authority must comply again with section 40(2) of that Act.

(4) Any provision of regulations under section 53 of the principal Act which permits the local planning authority to modify proposals after an inquiry or other hearing has been held under section 42 of that Act must be ignored.

(5) If such an inquiry or other hearing is held the authority must adopt the proposals in accordance with the recommendations of the person appointed to hold the inquiry or other hearing."

39. It follows from that that the process which has started should continue, but it is streamlined to the extent that the inspector's decision is final -- there is no modification of it permitted -- and the process of revised proposals is shortcircuited.
40. It was obviously necessary for Parliament to deal with the position where the process of producing a local plan was already under way. Schedule 8 does that. Paragraph 10 is, as I have said, the paragraph which is material in this case. It shows Parliament's conclusion that in such circumstances the 1990 Act procedure should continue. While no doubt there would be a degree of double inquiry, the 1990 Act process would be carried out in the knowledge that longer term considerations would need, if possible, to be given pursuant to the LDF. An inspector's view of the local plan proposals would be likely to be highly relevant for the LDF and the scope for shortening inquiries under the 2004 Act regime should mean that costs would be saved.
41. Of course, I recognise that two inquiries would inevitably be more expensive than one, but the avoidance of the local plan inquiry will itself be likely to result in added expense in dealing with appeals against or judicial reviews of particular decisions. In addition, the work involved in further consultation and reconsideration of the draft local plan would have to be carried out, and indeed has been carried out, to enable it to be adopted as a non-statutory plan. So the only saving would be the time and resources spent on dealing with the inquiry. I appreciate that that would be considerable, but it would, as I have indicated, not all be wasted, since the inspector's decision would be likely to reduce the issues to be dealt with under the LDF.
42. While there is no express statutory provision which permits a local planning authority to abandon or withdraw an emerging local plan, there is authority that the power exists in a decision of mine, Persimmon Homes (Thames Valley) Ltd v North Hertfordshire District Council [2001] 1 WLR 2393. Neither counsel has submitted that that decision was wrong, but there has been argument about its scope. Mr Village has submitted that it indicates that only in exceptional circumstances would it be right to exercise the power. Mr Drabble submits that it is not so confined and prays in aid the provisions of section 2 of the Local Government Act 2000, which confers very wide powers upon local authorities.
43. What I said in Persimmon can be summarised by referring to paragraph 23 of the judgment at page 2402 of the report. What I said was this:

"I have no doubt that it would be absurd to require proposals to be put through the statutory procedure including a public inquiry which is likely to be costly when the local planning authority know in advance that they will not be adopted. I accept that this will only rarely happen and I do not doubt that local planning authorities should consider abandoning only if satisfied that the proposals cannot even if modified be adopted. But it seems to me that the existence of the power is necessary to prevent carrying out expensive procedures for no sensible purpose. An example was given in argument of an allocation in a local plan which depended on the construction of a major transport link. After the local plan proposals are issued a decision is made not to build the link and this renders the relevant proposals impossible. This has a major impact on the whole local plan and requires a fundamental reconsideration. To go on to the bitter end with the proposals which have become impossible to adopt would clearly be ridiculous. I bear in mind too that it would be strange if the local planning authority were required to continue to pursue proposals which it no longer wished to adopt."

44. Whatever may be the scope of the power, it should not in my view be used to override provisions set out by Parliament to deal with a particular situation. The transitional arrangements should be followed unless there is a very good reason not to do so. This is particularly the case, as it seems to me, where paragraph 8 requires abandonment but the other paragraphs require, on the face of them, that the local plan process continue.
45. It is not and cannot be suggested that there is anything special affecting Wealden which makes it in any way inappropriate to apply the transitional arrangements. All authorities which had emerging local plans in being at the time of the commencement of the 2004 Act were in the same position, and Parliament catered for it. It did not seek to qualify or to permit exceptions. I am bound to say that I think GOSE's letter of 17th March 2004 was inappropriate. It is not for a Government department to put pressure on a Council not to follow statutory procedures.
46. Mr Drabble argued that the decision by the Council in reality produced no prejudice to the claimants. The inspector's report following a local planning inquiry would not be completed until the end of 2007, and if the Council's effort was now directed to the LDF the likelihood would be that an inquiry into that would take place only some six months, or at most 12 months, later. Thus for at least two years there would be no approved plan, but houses would have to be constructed to meet the goals set out in the structure plan. Thus it was in any event inevitable that those would have to be dealt with, having regard to the emerging plan or the non-statutory plan, as the case might be. Each should be given the same weight. Accordingly, particularly as there would otherwise be a degree of duplication of inquiries within a relatively short time of each other, it made economic and practical sense to abandon the existing procedure and concentrate on the LDF. Since there is undoubtedly power to abandon an emerging local plan, this is a situation which can properly be said to fall within the decision in Persimmon Homes.
47. Mr Village seeks to counter this by pointing out that the approach to emerging local plans set out in PPG1 will not apply. PPG1 deals with prematurity as a basis for refusals of permission which would be in accordance with existing but not with emerging policies. While it does not deal directly with grants of permission, the same approach to the weight to be attached to emerging plans should apply. In essence, that is that where there are known to be objections to a particular policy, and those objections have not been considered at an inquiry, the weight to be attached to the policy is likely to be small. He points out that the approach to the new system, as set out in PPS1 -- the new guidance papers are designated Planning Policy Statements rather than Planning Policy Guidance -- suggest that prematurity should not so readily justify refusal because of the delay which would thereby be imposed in determining the future use of the land in question.
48. It seems to me that it would be wrong to attach greater weight to a non-statutory plan in circumstances such as apply in this case. Because it has been decided to abandon the process on the basis that a subsequent inquiry would cover the same ground, that should not mean that the non-statutory plan has any greater force than it would have had if considered immediately before an inquiry was held. It is to be noted that that seems to accord with the advice received by the Council from leading counsel: see paragraph 3.24 of the report to the Cabinet of 5th May 2004.
49. I do not regard Mr Drabble's arguments as persuasive. What he is in effect saying is that the regime that Parliament has regarded as appropriate is imperfect and that time and cost can be saved by not following it. So far as cost is concerned, as I have indicated, Mr Village makes the cogent point that the costs of individual planning appeals and judicial reviews have not been fully taken into account, although it is fair to say that there will be such applications even if the local plan process continues. But it will be more difficult to attach significant weight to any proposals which are contentious when the inquiry is closer and the timescale for the existing plan goes through to 2011.
50. It is, I think, worth reminding myself of observations of Lord Scarman in Pioneer Aggregates v Secretary of State for the Environment [1985] 1 AC 132. At page 140, letter H, he said this:

"Planning control is the creature of statute. It is an imposition in the public interest of restrictions upon private rights of ownership of land. The public character of the law relating to planning control has been recognised by the House in Newbury District Council v Secretary of State for the Environment [1981] AC 578. It is a field of law in which the court should not introduce principles or rules derived from private law unless it be expressly authorised by Parliament or necessary in order to give effect to the purpose of the legislation. Planning law, though a comprehensive code imposed in the public interest, is of course based on the land law. Where the code is silent or ambiguous, resort to the principles of private law, especially property and contract law, may be necessary so that the courts may resolve difficulties by application of common law or equitable principles. But such cases will be exceptional, and if the statute law governs the situation, it will be an impermissible exercise of the judicial function to go beyond the statutory provision by applying such principles merely because they may appear to achieve a fairer solution to the problem being considered. As ever in the field of statute law, it is the duty of the courts to give effect to the intention of Parliament as evinced by the statute or statutory code considered as a whole."

51. Here there is a statutory code. It must be followed unless there is good reason not to do so. Such reason may be found if there are grounds to abandon the emerging plan in the sort of circumstances envisaged in Persimmon. But the view that it would be more economical and sensible is not such a reason. I also note that there has been support, as I have said, from others, including the Parish Council in the Wealden District, to the claim that is made in this case. It follows that this claim must be allowed.
52. Mr White, the only relief you seek is quashing, is it not, the decision of the Council?
53. MR WHITE: Yes, my Lord. That was the relief we sought, but it appears appropriate from the judgment, and the way my Lord has referred to the transitional arrangement, that there is now only one option for the Council to follow and that is to now continue with the statutory local plan process.
54. MR JUSTICE COLLINS: Yes. In fact, I do not think it should be particularly difficult because they have done all the work and all they need to do is to follow 40(2) and arrange a local inquiry.
55. MR WHITE: Yes, my Lord.
56. MR JUSTICE COLLINS: Those, as far as I can see, are the only steps that need to be taken because the plan is already --
57. MR WHITE: The plan is being consulted upon.
58. MR JUSTICE COLLINS: -- being consulted on and -- I have lost my copy of it for a moment.
59. MR WHITE: My Lord, I think I can see it. It is in the far corner there. I think my learned friend would of course have to be republished and people advised that now the statutory route will be pursued.
60. MR JUSTICE COLLINS: Section 40(2) has to be followed. It has to be published and I think there is a six-week period, is there?
61. MR MAURICI: My Lord, there is. My Lord, the point is that you are given this opportunity -- or in fact you are required to republish again -- because under the old regime, of course, you had the chance for modifications later in the process.
62. MR JUSTICE COLLINS: But you do not now.
63. MR MAURICI: No, you do not now, and the reason you are given the chance to do it again is so that you can consider here and now whether you make any changes that you could not later in the process. So you cannot assume it is simply going to be six weeks, we publish what we have done.
64. MR JUSTICE COLLINS: That is up to you.
65. MR MAURICI: Because you have to take into account the fact that if there are going be any modifications by you, they need to be made now. So it could be a longer process.
66. MR JUSTICE COLLINS: That is a matter for the Council.
67. MR MAURICI: It is indeed, my Lord. In terms of the relief, the relief sought was a quashing order. My Lord, in my submission, that is all that is needed.
68. MR JUSTICE COLLINS: I think that is right.
69. MR MAURICI: My Lord, the judgment effectively gives an indication of what your Lordship thinks the Council should do. My Lord, also, the quashing order should be limited to the decision to effectively abandon or withdraw the local plan.
70. MR JUSTICE COLLINS: Yes.
71. MR MAURICI: It should not extend to any other part of the decision-making on 5th May; for example, the decision to commence the LDF.
72. MR JUSTICE COLLINS: No, effectively one goes back to the original decision, I suspect, which is to do both in tandem.
73. MR MAURICI: That may be the reality of it.
74. MR JUSTICE COLLINS: Obviously -- I think this must be right -- the only matter that needs to be quashed is the decision to abandon the local plan process. You must now go ahead with the local plan process. That is what it boils down to.
75. MR MAURICI: That is (inaudible) and the quashing order.
76. MR WHITE: My Lord, the claimants ask for their costs.
77. MR JUSTICE COLLINS: In principle I do not think you can resist, can you? You may be able to resist the amount, but can you resist in principle?
78. MR MAURICI: My Lord, I do not resist the principle.
79. MR JUSTICE COLLINS: No. Somewhere I was given a --
80. MR MAURICI: My Lord, I would like to see the schedule and the claimant's schedule of costs.
81. MR WHITE: There is a revised schedule.
82. MR JUSTICE COLLINS: Can I have a look at both? It is probably the sensible thing. I suspect the one is rather higher than the other.
83. MR WHITE: (Handed). I have not had the opportunity to discuss this in detail with Mr Maurici, my Lord. I understand that an issue is taken in respect of VAT.
84. MR JUSTICE COLLINS: They are very substantial sums. I would have thought, unless you really want to press me hard, that this is the sort of case where there ought to be a detailed assessment if not agreed.
85. MR MAURICI: That is what I seek.
86. MR WHITE: We do not have any trouble about that.
87. MR JUSTICE COLLINS: I think that is what I should do and I will do that.
88. MR MAURICI: My Lord, I have an application for permission to appeal. My Lord, I will make this as briefly as I can. I make it under both heads of the rules, both general public importance and real prospect of success.
89. In relation to general public importance, three submissions. First of all, the power to withdraw from a local plan, as considered in Persimmon, has never been considered by the Court of Appeal. My Lord, the extent to which that power now relates to the transitional provisions in the 2004 Act makes this issue perhaps more important now than it has ever been in the past. My Lord, I pray in aid in that regard what your Lordship referred to, which is that there are a number of other local authorities who have taken similar decisions. We certainly know there is one other at least.
90. Secondly, your Lordship's judgment in my submission does raise issues about the interrelationship of the transitional provisions with what the Government have set out as being good practice in PPS12 in terms of a ten-year horizon, et cetera, if your local plan does not do it. So, my Lord, that in itself -- PPS12 has been in force for a number of months now -- raises a point of public importance throughout the whole of the planning system.
91. My Lord, the third submission in terms of public importance is clearly that this is quite an important point for the land use planning for the whole of the Wealden District, which itself is a point of public importance. My Lord, for those three reasons, I say, of public importance permission to appeal should be given.
92. My Lord, in terms of real prospects of success, I am not going to go through all the submissions again. But can I just draw your Lordship's attention to a couple of points which I say we have a real prospect of explaining to the court that your Lordship erred on. My Lord, one is that one of the themes of your Lordship's judgment was that there was something inappropriate about the GOSE letters; in particular, my Lord, their reference to the potential effect of delivery grant. In my submission, my Lord, we have reasonable prospects of persuading the Court of appeal your Lordship erred in that regard, my Lord, because, first of all, this point -- which surfaced only during the course of the oral submissions and was never a pleaded ground -- that there was anything wrong with us taking it into account, but beyond that, my Lord, comprehensive performance assessment is an established part of (inaudible) since 1999.
93. My Lord, all GOSE are saying is that one of the requirements of comprehensive assessment is that you have plans in place for a certain time arising. If you do not do that you are in difficulties. My Lord, so I say there is nothing illegitimate or improper about us taking it into account or GOSE raising it. So, my Lord, the difficulty is that your Lordship's judgment does, I say, throw into question all those aspects of comprehensive assessment.
94. MR JUSTICE COLLINS: I am not sure that I would accept that, but of course that is not a matter which was in any way essential to the conclusion.
95. MR MAURICI: My Lord, the second point is, in terms of persuading the Court of Appeal, I principally of course rely on the public importance. My Lord, in terms of persuading the Court of Appeal that your Lordship's decision is wrong, the reality of the situation is that we are now looking -- given that we are progressing the LDF process at the same time -- at spending in excess of £400,000 to have a plan which will only really have any effect for a six-month period, and decreasing as we speak.
96. MR JUSTICE COLLINS: It will not. It will have a three-year effect.
97. MR MAURICI: My Lord, the next point is that the transitional provisions, my Lord, set the outer limits for the timetable of what you should be doing, but in no way do they limit effectively what is good practice in terms of doing it early. That does tie back into the public importance point.
98. MR JUSTICE COLLINS: Somebody should have persuaded Parliament to have made different transitional arrangements, should they not?
99. MR MAURICI: My Lord, the transitional arrangements just set the limits. They do not in any way restrain the power to do things earlier. My Lord, of course it has been no part of this challenge in fact.
100. MR JUSTICE COLLINS: You can do it earlier, certainly.
101. MR MAURICI: But, my Lord, if you do it earlier the effective result is you have an LDF which will be before six months after --
102. MR JUSTICE COLLINS: Then you will not need much of an inquiry.
103. MR MAURICI: My Lord, you will need exactly the same inquiry, because, according to your Lordship's judgment, we have to follow the statutory process for the local plan. It would only really have the effect of six months because then you will have a new LDF covering the same period and beyond.
104. MR JUSTICE COLLINS: I see the argument.
105. MR MAURICI: Those are my submissions on both grounds, public importance and real prospects.
106. MR JUSTICE COLLINS: Mr White?
107. MR WHITE: My Lord, all I would say in respect of the public importance is that the transitional arrangements are clear as to what Parliament intended; and that, my Lord, Wealden is not unique and its reasons given in the reports do not fall within the very good or exceptional circumstances for not following the transitional arrangement. My Lord, it would appear from our side of the room better now for Wealden to get on with its local plan, producing it and going to inquiry, and then if necessary to an LDF examination early on, rather than going to the Court of Appeal.
108. MR JUSTICE COLLINS: Yes. I recognise that there are important issues which would justify leave to appeal. Whether of course you pursue it is a matter for you. But if you are going to pursue an appeal I think it should be done very quickly. No doubt you would want that in any event.
109. MR MAURICI: The only thing I was going to say, my Lord, was that obviously we have a read-out judgment rather than a handed down one.
110. MR JUSTICE COLLINS: You can have an expedited transcript.
111. MR MAURICI: Could I ask that time be extended for lodging this appeal to 14 days after the transcript becomes available? That allows not only for us to consider the judgment fully and the transcript in full, but also, my Lord, obviously this decision will have to almost certainly have to go back to full Council or the Cabinet --
112. MR JUSTICE COLLINS: I follow that.
113. MR MAURICI: Once we bring the appeal I accept we are going to have to apply for expedition. That is the reality of it.
114. MR JUSTICE COLLINS: There are some slight problems. You have presumably made a note of the judgment. I apologise that -- frankly, you would have got it a couple of weeks later if it had been a hand-down. Unfortunately I am away next week, so I will not be able to correct the judgment until the beginning of the following week, so you will not get it for ten days or so.
115. I take your point on the final form of it, but I would have thought that you have enough, have you not, to enable at least preliminary discussions to be made and consideration given as to whether there should be an appeal.
116. MR WHITE: What about if you order seven days from the transcript becoming available?
117. MR JUSTICE COLLINS: That I would be perfectly prepared to do.
118. MR MAURICI: Because then we can use the time now and then after.
119. MR JUSTICE COLLINS: That is what I was thinking. It is obviously your concern to expedite.
120. MR MAURICI: If the appeal is going to be pursued it will have to be pursued as quickly as possible. Otherwise it is pointless.
121. MR JUSTICE COLLINS: I cannot do anything directly in regard to that, but I put on my reasons for decision that there should be expedition, not that it is a reason for decision.
122. MR MAURICI: Thank you, my Lord.