Poole v Secretary of State for Communities and Local Government & Anor

Neutral Citation Number: [2009] EWHC 1767 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT Case No. CO/727/2009 Royal Courts of Justice Strand London WC2A 2LL Date: Thursday, 25th June 2009 B e f o r e: KEITH LINDBLOM QC - - - - - - - - - - - - - - - - - - Between: ALFRED POOLE v Claimant (1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT (2) WEST BERKSHIRE COUNCIL Defendants - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 265 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - The Claimant appeared in person Charles Banner (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant Emmaline Lambert (instructed by West Berkshire Council) appeared on behalf of the Second Defendant - - - - - - - - - - - - - - - - - - J U D G M E N T 1. THE DEPUTY HIGH COURT JUDGE: Introduction 2. 3. Before the court there is an application under section 288 of the Town and Country Planning Act 1990 for an order to quash the decision of the Secretary of State's Inspector, issued on 16 December 2008, dismissing the claimant's appeal against the refusal by the second defendant, the West Berkshire Council ("the Council") of his application for outline planning permission for a development described in the decision letter as "nine affordable, sustainable houses with a local occupancy constraint" on land adjacent to Northfields, Wantage Road, Lambourn near in Hungerford in Berkshire. The site to which the claimant's appeal related lies a short distance to the north of Lambourn, in open and undeveloped land in the countryside, outside the defined settlement boundary and in an Area of Outstanding Natural Beauty. Thus the site is subject to restrictive policies relating to proposals for new development in the open countryside, save for the specified exceptions referred to in Policy ENV18 of the West Berkshire District Local Plan 1991-2006 Saved Policies of September 2007. 4. Policy ENV.18 of the local plan provides: "The nature and scale of development in rural areas should seek to encourage and sustain balanced rural communities. Development outside of settlements, allocated sites and other defined areas... will be permitted only where: (a) it will benefit the rural economy in accordance with Structure Plan Policy C2 and Local Plan policies ENV.16, ENV.19 and ENV.20; or (b) it will provide beneficial use of a brownfield site in accordance with Structure Plan Policy BU3 and Local Plan policies OVS.1, and OVS.2; or (c) it is within the permissible categories of housing development in the countryside; and provided it will maintain or enhance the environment and is appropriate in scale, form, impact character and siting to its location in the countryside." 5. Two other policies of the local plan, namely policies HSG.11 and OVS.3 ought to be mentioned in describing the background. Policy HSG.11 of the local plan provides: "The Council, where justified as an exception to other policies of this Plan, will grant permission for small scale affordable housing schemes to meet identified local needs on sites adjacent to existing rural settlements provided; a) the need has been established by way of a recent local survey of housing need; and b) a scheme is prepared and agreed to reserve and control the occupancy of the dwelling for local needs; and c) the development does not adversely affect any landscape features that are important to the rural character of the area; and d) the development accords with Policy OVS.2; e) provision should be made for such schemes to be managed and occupied so that they remain affordable in perpetuity." 6. Policy OVS.3 of the local plan provides: "The Council will require to be satisfied that the infrastructure, services and amenities made necessary by the development are provided or will be provided at the appropriate time so as to ensure the proper planning of the area. In addition, when considering proposals for development opportunities will also be sought for securing environmental improvements and community benefits. Such provision will relate to those works necessary to the grant of planning permission, and which are relevant, reasonable and directly related and fairly and reasonably related in scale and kind to the proposed development, and may for example include: (a) affordable housing; and/or (b) landscaping, including major structural landscaping on sensitive or exposed sites; and/or (c) improved access for pedestrians, cyclists and people with disabilities; and/or (d) public transport facilities and services, public car parking, provision for services vehicles or other highway improvements; and/or (e) green travel plans where major developments are proposed; and/or (f) the implementation of measures enabling the use of sustainable transport modes, such as walking, cycling and public transport; and/or (g) space and facilities for recreation, community and medical facilities; and/or (h) provision of re-cycling facilities; and/or (i) the repair of listed buildings and the preservation/enhancement of SMITH BERNAL WORDWAVE Conservation Areas and sites of archaeological interest; and/or (j) the management of land and water areas for nature conservation purposes; and/or (k) public art in appropriate places." 3. A previous proposal, similar to the one with which the present proceedings are concerned, had failed at appeal in March 2008. Because they relate to two of the issues raised before me, I believe I should note what was said by the Inspector in paragraphs 4 and 7 of his decision letter of 3 March 2008: "4. The appeal site is part of the countryside just outside the defined settlement of Lambourn. Policies ENV.18 and HSG.2 of the West Berkshire District Local Plan 1991-2006 restrain development here but allow affordable housing for local needs to be treated as an exception if it is in accordance with Policy HSG.11. In this case I find no evidence that such a need has been established by way of a recent local survey of housing need, no prepared and agreed scheme to reserve and control the occupancy of the proposed houses for local needs, and no clear provision to ensure that the affordable housing would be managed and occupied so that it would remain affordable in perpetuity. For these reasons I consider that the appeal scheme is not in accordance with Policy HSG.11. I do not accept that the description of the development as affordable housing would itself be sufficient. Nor, with the information before me, am I satisfied that the shortcomings would be remedied and the necessary provision secured by means of a reasonable planning condition. Indeed, no particular wording for such a condition has been suggested by the appellant, and none is included in the list of conditions suggested by the Council. ... 7. Like Policy DP4 of the Berkshire Structure Plan 2001-2016, Local Plan Policy OVS.3 states that the Council will require to be satisfied that the infrastructure, services and amenities made necessary by the development are provided or will be provided at the appropriate time so as to ensure the proper planning of the area. Accordingly the Council seeks contributions in respect of transport, libraries and the Primary Care Trust. Having regard to the Council's supplementary planning guidance on these matters, I have no good reason to doubt the basis for those contributions. Even if the prospective occupiers of the proposed development are already living in the area, I cannot assume the same for those who would occupy the accommodation vacated by the former, were the appeal scheme to come to fruition. Therefore I do not accept that additional demand for local infrastructure would be unlikely to result. While the Council has been prepared to waive contributions in some 100 per cent affordable housing schemes in order to allow the schemes to be SMITH BERNAL WORDWAVE financially viable, I find no policy basis for the inference that this would generally be the case in all 100 per cent affordable housing schemes. Bearing in mind my conclusion on the first main issue, I would not have high expectations of the contributions being waived in the case of the appeal scheme. In the absence of a planning obligation to secure such contributions, or another means of accommodating the resulting demands on infrastructure, I conclude that the appeal scheme would not make adequate provision for infrastructure made necessary by the development and that it is not in accordance with Policy OVS.3." 4. 5. So far as I am aware, there was no legal challenge to that decision. On 17 March 2008 the claimant submitted to the Council the proposal to which the present proceedings relate in the form of an application for outline planning permission. 6. When the second application for planning permission was determined by the Council, it refused to approve it for five reasons, which, as stated in the Council's decision notice of 12 August 2008, were these: "1. The applicant has failed to satisfy the Council that the new homes will be made available at a truly affordable price, in perpetuity, nor has he submitted an up-to-date local housing needs survey to substantiate the justification for this new scheme in the open countryside. Further the size of the units appear small to accommodate local housing standards in the district and there is no clear evidence base to substantiate 100 per cent mix of low cost equity units as opposed to a minimum 70 per cent rented accommodation normally expected in the district. Accordingly the application is clearly contrary to Policy HSG.11 of the West Berkshire District Local Plan 1991-2006 Saved Policies 2007 and Policy H5 in the Berkshire Structure Plan 2001-2016 Saved Policies 2008. It is thus unacceptable. 2. The proposed access is unsuitable due to the unknown detail of the arched entrance and forward visibility splays to accommodate the traffic which would be generated by the scheme and so is contrary to Policy OVS.2 in the West Berkshire District Local Plan 1991-2006 Saved Policies 2007. 3. The layout does not comply with the Council's adopted standards for vehicle parking which could result in additional pressures for on-street parking on the Wantage Road so adversely affecting road safety and the free flow of traffic. Further the internal highway layout does not appear to accommodate the necessary on-site turning facilities for refuse vehicles and so the layout is considered to be contrary to Policy OVS.2 of the West Berkshire District Local Plan 1991-2006 Saved Policies 2007. 4. The applicant has failed to prepare an ECO HOMES pre-assessment rating of GOOD which would comply with the Council's adopted SMITH BERNAL WORDWAVE standards for new homes in the district. Accordingly, notwithstanding the limited information submitted with the application, it is considered contrary to Policy OVS.10 in the West Berkshire Local District Plan 1991-2006 Saved Policies 2007. It is thus unacceptable. 5. The applicant has failed to enter into a section 106 planning obligation, such that the impact of the new occupants on the Council's services, facilities and infrastructure will be mitigated. Accordingly, the application is considered to be contrary to Policy OVS.3 in the West Berkshire District Local Plan 1991-2006 Saved Policies 2007, Policy DP4 in the Berkshire Structure Plan 2001-2016 Saved Policies 2008, the advice contained within Circular 5/2005 and the Council's SPG4/04. The application is thus considered to be unacceptable on this basis." 7. The second appeal proceeded, as had the first, on the basis of written representations. In paragraphs 2, 3 and 4 of his decision letter the Inspector dealt with various procedural matters. In paragraph 3 he referred to the previous appeal decision: "The appeal site has been the subject of a previous appeal decision under Ref: APP/W0340/A/07/2060166 dated 3rd March 2008. The scheme the subject of the previous decision, which was dismissed, was for nine affordable, sustainable houses with a local occupancy constraint. I have borne the previous decision in mind when making my determination." 8. In paragraph 4 the Inspector turned to consider the unilateral undertaking that had been submitted by the claimant: "The appellant submitted a unilateral undertaking made under the provisions of section 106 of the Town and Country Planning Act 1990 in connection with the appeal. The undertaking is dated 3rd November 2008 and contains covenants given by the appellant. However, I note that the appellant is not the current owner of the appeal site. The undertaking states that he will enter a conditional agreement for the purchase of the site subject to receipt of a satisfactory planning permission. Given this information, I am not therefore satisfied that the appellant has an interest in the land which would ensure that the covenants contained in the undertaking would run with the land and bind future owners of it. I therefore give little weight to the undertaking." 9. In paragraph 5 of his decision letter the Inspector defined the main issues in the appeal as he discerned them to be. These were: "... (1) Whether or not the appeal scheme's provision for affordable housing is sufficient to justify treating the scheme as an exception in terms of development plan policies that seek to limit new housing development in the countryside; (2) Whether the scheme makes adequate provision for access and parking; (3) Whether the scheme makes adequate provision for infrastructure made necessary by the development, SMITH BERNAL WORDWAVE particularly in terms of transport, libraries, the Primary Care Trust and public open space; and (4) Whether the scheme would be provided with an adequate Eco Homes rating." 10. The Inspector considered and reached his conclusion on the first of those four issues, the issue concerning the question of the appeal scheme's provision of affordable housing and whether that would serve to outweigh the policies of the development plan limiting new residential development in the countryside in paragraphs 6 to 11 of the decision letter, where he stated as follows: "6. The appeal site lies in open countryside just to the north of the defined settlement at Lambourn. The proposal is to erect nine affordable houses on the site and the application form also refers to the provision of 15 parking spaces. The Design and Access Statement submitted with the application refers to the houses having two storeys with eaves' heights of about 5-5.5 metres. It is indicated that the mix of housing would be likely to be one one-bedroomed house, four two-bedroomed houses and four three-bedroomed houses, though the size of houses would be according to occupier demand. 7. Policy ENV.18 of the West Berkshire Local Plan 1991-2006 Saved Policies 2007 seeks to restrain development within the countryside. However, affordable housing for local needs can be treated as an exception if it accords with Policy HSG.11. Policy HSG.11 requires that the need for affordable housing on rural exception sites be established by way of a recent local survey of housing need. There was no such survey, or detailed results of such survey before me. However, I was provided with extracts from some completed questionnaires from a local housing needs survey carried out by the appellant. I consider that the extracts provide a snapshot of some aspects of housing need in Lambourn and the surrounding area but, to my mind, they are not as comprehensive or robust in terms of evidence as the results of a full local housing needs survey would be. I therefore give limited weight to the extracts. 8. The information supporting the application suggested that the proposal would provide intermediate housing with fixed-share equity purchase being available. However, the Council's supplementary planning guidance entitled 'Delivering Investment from Sustainable Development - Topic Paper 1 - Affordable Housing' requires a 70:30 tenure split of rent to new build homebuy on affordable housing sites. The extracts from the completed questionnaires referred to in the previous paragraph do refer to some need for intermediate housing in Lambourn and the surrounding area, but I have given limited weight to the extracts. Having regard to the evidence before me, I am not therefore satisfied that, even if the need for affordable housing had been established, the level of intermediate housing proposed within the scheme would have been appropriate. In this context, I also note that Planning Policy Statement 3: Housing encourages a mix of tenures on housing sites. SMITH BERNAL WORDWAVE 9. Given that I am not satisfied that the covenants contained in the unilateral undertaking would run with the land, it follows that there is no mechanism in place to ensure that occupation of the units would be directed towards local needs through a cascade mechanism. In this context, I note that the cascade mechanism referred to in the undertaking referred to the Council's district and beyond, rather than to Lambourn and surrounding parishes. This suggests to me that the cascade mechanism was not accurately targeted at meeting local need. There would also be no binding covenant in place to ensure that the units would be sold at a price which would be truly affordable and would remain so in perpetuity. 10. The Council referred to the size of the proposed units in its first reason for refusal. However, given that the application before me is in outline with all matters reserved, apart from scale, and the appellant has indicated that the size of units would be variable, I consider that this could be dealt with at reserved matters stage. 11. Overall, I conclude that the proposal's provision for affordable housing does not justify treating the scheme as an exception to development plan policies that seek to limit the spread and impact of new development in the countryside. The proposal would, therefore, be contrary to Policies ENV.18 and HSG.11 of the Local Plan." 11. The third issue, relating to the proposal's provision for infrastructure, the Inspector addressed at paragraphs 16 to 18 of his letter in this way: "16. Policy [OVS.3] of the Local Plan states that the Council will require to be satisfied that the infrastructure, services and amenities made necessary by the development are provided at the appropriate time to ensure the proper planning of the area. The Council has also adopted supplementary planning guidance entitled 'Delivering Investment from Sustainable [Development]', which goes into considerable detail as to how contributions should be assessed. In this case, the Council seeks contributions in respect of transport, libraries, the Primary Care Trust, and off-site public open space. After considering the policy background and the Council's reasoning behind the amounts sought, it is my view that the basis for the contributions is well founded. 17. Information before me indicates that the appellant is prepared to make a contribution towards the amounts sought by the Council, but it is clear that agreement has not been reached on any reduction or waiver of contributions. Although some of the prospective occupiers of the proposal may live in the area, the accommodation that they now occupy could be occupied by persons from outside the area upon their vacation of it. In my opinion, it follows that additional demand for infrastructure would be likely to occur as a result of the proposal. Although contributions have been waived in some cases for affordable housing schemes, I understand that this has been done following an open book SMITH BERNAL WORDWAVE approach with applicants providing information as to the commercial viability of the schemes in question. However, this has not taken place here. 18. After considering the evidence before me, I therefore consider it appropriate that the contributions sought by the Council should come forward. There is no mechanism before me, such as a unilateral undertaking under the provisions of section 106 of the 1990 Act to facilitate the payment of the contributions. I therefore conclude that the scheme does not make adequate provision for infrastructure contrary to Policy [OVS.3] of the Local Plan." 12. In paragraph 20 of his decision letter the Inspector said this: "In arriving at my decision, I have been mindful that the appellant would use sustainable methods in the construction of the units which would lead to woodland restoration but this point does not outweigh the cogent harm to planning objectives that I have found. Reference has also been made to the human rights of the residents of the district in terms of them obtaining satisfactory housing but I have found that the appellant has not established need for affordable housing on the appeal site." The issues in the claim 13. As originally submitted, the claimant's grounds raised a multiplicity of contentions, most of which appear to me to be quite distinctly an attack on the Inspector's findings of fact and on his conclusions on the merits, and thus beyond the proper scope of an application under section 288 of 1990 Act. 14. In his skeleton argument, which has clearly been prepared with much care and in an obvious effort to assist the court, the claimant has somewhat refocused his challenge. In section 4.a of his skeleton argument, under the heading "Introduction — Issues to be considered", the claimant expresses the essential parts of his application as being: "• Whether or not the appellant has an interest in the land • If there is evidence of a housing need". Those, he says, are the two principal issues. 15. He goes on to say that there is a further point regarding tenure and intermediate housing, which he characterizes in this way: "• The level of Intermediate housing, and, its use to Deliver Investment." 16. He makes it plain that the application, and his argument, are therefore restricted to those three main points. SMITH BERNAL WORDWAVE 17. He goes on to state: "Clarification on these three points will thereby compel the local authority to openly discuss these points; something they have refused to do, up to this point." 18. Despite that helpful refinement of the agenda for the court, I believe I ought still to remind myself of some of the basic legal principles which shape the territory for proceedings such as these. Those principles were helpfully summarized in paragraphs 11 to 17 of Mr Banner's skeleton argument. 19. First, it is well established that a claim under section 288 may only be brought on the grounds on which a claim for judicial review may be brought (see, for example, Seddon Properties v Secretary of State for the Environment [1978] JPL 835 and E v Secretary of State for the Home Department [2004] QB 1044 per Carnwath LJ, at paragraphs 40-43). Where the court discerns an error of law on the part of the decision-maker, it nevertheless retains a discretion not to quash in the absence of real prejudice from that error. 20. Secondly, an Inspector's decision should be approached with a degree of flexibility and should not be treated as if it were a legally drafted contract or a statute (see, for example, what was said by Lord Brown in South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953 at paragraph 36). 21. Thirdly, the courts will accord substantial deference to the planning judgment of Inspectors and will only disturb an Inspector's conclusions if they are irrational, perverse or based on some other error of law, the classic statement here being that of Lord Hoffmann in his speech in Tesco Stores Ltd v Secretary of State [1995] 1 WLR 759 (at page 780). 22. As was stressed by Sullivan J (as he then was) in R (Newsmith Stainless Ltd) v Secretary of State [2001] EWHC 74 (Admin) (at paragraph 6), an application to the court "is not an opportunity for a review of the planning merits of an inspector's decision" and "the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits". 23. Fourthly, in order to establish that a planning decision is unlawful on the basis of an error of fact, four conditions must be satisfied: first, there must have been a mistake as to, or ignorance of, an existing fact; secondly, the fact must have been "established", in the sense that if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence; thirdly, the claimant (and his advisers) could not fairly be held responsible for the error; and, fourthly, the mistake must have played a material, although not necessarily decisive, part in the reasoning (see E v Secretary of State for the Home Department at paragraphs 63-66, as applied in Eley v Secretary of State for the Home Department [2009] EWHC 660 (Admin) (at paragraphs 50-51)). SMITH BERNAL WORDWAVE 24. With those principles in mind, I turn to the issues raised by the claimant in his skeleton argument. Issue 1: The claimant's interest in the appeal site 25. The claimant argues that he would have been able to demonstrate to the Inspector, contrary to the impression conveyed by the Inspector in paragraph 4 of his decision letter, that he did indeed have a sufficient interest in the site to found the unilateral undertaking which he put forward. 26. The recital in the unilateral undertaking in paragraph vii states this: "The Applicant has or will enter into a conditional agreement for the purchase of the Land free of encumbrances subject to the receipt of a satisfactory planning permission granted in accordance with the planning permission, full details of which are set out in schedule 2 hereto." (My emphasis). 27. The claimant has contended that he has, and had at the relevant time, an interest in the site, in the form of a conditional contract. This, he acknowledges, was not produced to the Inspector. But he says that he would have provided evidence of it had the Inspector asked for it. He points to paragraph B54 of Circular 05/05, which states: "... The purchaser of the development site may also have an 'interest', for example where he/she is a party to a contract conditional upon obtaining planning permission for the land, or has a right under an option to purchase the land. At an appeal, the Inspector may seek evidence of title if it has not been demonstrated that the developer has the requisite interest." 28. The claimant's complaint is that the Inspector did not take the initiative in doing what the second sentence in that passage of the circular says he may do, which is to seek evidence of title if it has not been demonstrated that the developer has the requisite interest. 29. 30. I believe it is important to see how the Inspector actually dealt with this matter in the terms in which he did. What he said was that he was not satisfied that the claimant had an interest in the land which would ensure that the covenants contained in the undertaking would run with the land and bind future owners of it. For that reason he gave little weight to the undertaking. It is to be noted that he did not attribute no weight to the undertaking, merely little weight. In any event, I do not believe it was incumbent upon the Inspector to do as the claimant has contended he ought to have done: to take the initiative in seeking from the claimant information, or proof, as to his interest in the site. He dealt with the unilateral undertaking as it was presented to him, which is, in my view, equivocal in the part of the recital referring to the claimant's interest. SMITH BERNAL WORDWAVE 31. However, even if I were to take a contrary view, and to hold that the Inspector ought to have done as the claimant suggests, I am still left with the conclusion that ultimately this would not have made any material difference to the decision he actually made. I say this because in paragraph 9 of his decision letter the Inspector deals with the substantive provisions of the unilateral undertaking relating to the cascade mechanism, concluding — and this was clearly a matter for him in exercising his planning judgment — that the cascade mechanism was not accurately targeted at meeting local need. Plainly, that judgment flowed from his own conclusion, earlier stated, as to the inadequacy of the evidence to substantiate the contention of a pressing or substantial local need for the kind of housing proposed by the claimant. 32. Thus it seems to me that even if the Inspector had given full weight to the unilateral undertaking, on the basis that he was satisfied that the claimant had a sufficient interest in the land to give the commitment in an effective way, he would still have reached the conclusion that the undertaking, as presented to him, was insufficient to satisfy that important consideration, namely the meeting of local need. So, even had I concluded that the Inspector fell into error in not embarking upon an enquiry as to the claimant's interest, it appears to me that this ultimately would have made no difference to his decision. 33. I therefore reject this first ground, both on the basis that I am not satisfied that the Inspector erred in failing to seek information about the claimant's interest and on the basis that in any event it would have made no difference had he done so, and had he been satisfied that the claimant did indeed hold the interest for which he contended. Issue 2: Housing need 34. The claimant contends that the Inspector fell into error in misunderstanding the evidence before him relating to housing need. He says that the error was one of fact: there was indeed a local housing needs survey. There were several documents in which local housing needs could be discerned. 35. I do not accept that contention as being correct in fact. The Inspector had before him evidence from the claimant in the form of the questionnaires to which he made reference in paragraph 7 of his decision letter. He clearly held, and in my view he was entitled reasonably to hold, that whilst these documents provided a snapshot of some aspects of housing need in Lambourn and the surrounding area, they were not as comprehensive or robust, in terms of evidence, as would be the results of a full local housing needs survey. That seems to me to have been an entirely sensible conclusion for the Inspector to reach on the evidence. He was concluding that the material provided to him by the claimant did not amount to a relevant and sufficient local survey of housing need. 36. Equally, I reject the contention that one can discover, in the Berkshire Housing Market Assessment of February 2007, what could properly be described as "a recent local survey of housing need relevant to Lambourn and its surrounding area". The strategic nature of that assessment is plain from the extracts provided to me. It does not descend to the level of a consideration, within the district of West Berkshire, of local housing SMITH BERNAL WORDWAVE needs in any particular part of that district, or, in particular, within the area of Lambourn. Its conclusions, as one would expect from a strategic housing market assessment, are put at a general strategic level. I do not believe, therefore, that the Inspector fell into error in failing to discern, from that document, evidence of the kind for which he felt bound to look. Nor has any other document been presented to me which could properly provide a basis for the claimant's contention that the Inspector erred in fact in failing to discover sufficient evidence of local housing needs. In the conclusion to which the Inspector came in paragraph 7 of his decision letter he seems to me to be beyond reproach. 37. This was a planning judgment reached on the basis of the Inspector's own assessment of the evidence and there is no basis, in my view, for the court to interfere with it. Issue 3: Intermediate housing 38. The question here is whether, as the claimant contends, the Inspector misapplied, or misunderstood, the relevant supplementary planning guidance in reaching the conclusion, in paragraph 8 of his decision letter, that the level of intermediate housing proposed within the scheme was not shown to be appropriate. 39. As I read paragraph 8 of the decision letter, the Inspector was placing his conclusions within the context of the indication given in the supplementary planning guidance as to the appropriate tenure split of rent to new build homebuy on affordable housing sites. He was not applying that tenure split directly to this development on the basis that the development fell within the ambit of the supplementary guidance, in terms of the quantity of housing proposed or the size of the site. This was the essential context, however, for the conclusion to which the Inspector came, having regard to the particular characteristics of this development. 40. 41. It was accepted in the course of argument before me that the claimant did put forward his scheme on the basis that the housing contained in it would, in its entirety, qualify as intermediate housing, as defined in PPS3. The definitions of affordable housing in PPS3, in Annex B, make a clear distinction between social rented housing and intermediate affordable housing. As I understood his argument, the claimant accepted that his proposals were intermediate affordable housing as thus defined. It seems to me that the Inspector was quite properly reaching his own judgment, having regard to the scheme before him and its composition in terms of tenure, and having regard also to the section 106 obligation, which contains such commitment as there was to the delivery of that housing; and he came to the conclusion that it was not appropriate, even if the need for the affordable housing proposed had been established, to put forward a scheme here on the basis of 100 per cent intermediate housing. Again, this was a planning judgment with which the court will not interfere. 42. The claimant developed a further point in relation to the provision of contributions in accordance with Policy OVS.3. This was focused on the conclusions reached by the Inspector in paragraphs 16 to 18 of his decision letter. There, it seems to me, once again, the Inspector has expressed clear and, in my impression, entirely well-founded SMITH BERNAL WORDWAVE planning judgments, consistent — as they seem to me to be — with the conclusions expressed on the same issue by his predecessor. 43. The Inspector concluded that the scheme did not make adequate provision for infrastructure and was thus contrary to Policy OVS.3 of the local plan. This judgment was founded on his earlier conclusion, stated at the end of paragraph 16, that in the light of the relevant policy background, and the reasoning the Council had presented for the amount sought, the basis for the contributions they were seeking was indeed well-founded. 44. 45. I do not accept that there is any manifestation here, either on the part of the Council or on the part of the Inspector, of an ultra vires attempt to secure contributions to infrastructure and services. It seems to me that this was a straightforward planning judgment, entirely justifiable in the way in which the Inspector came to reach it. This aspect of the challenge is therefore, in my view, also unfounded. Conclusion For the reasons I have given, I reject in its entirety the claimant's challenge to the Inspector's decision. As first impressions suggested, this application, tenaciously and courteously presented as it has been by the claimant, has proved to be an attempt to impugn the Inspector's planning judgment by re-opening the substantive merits of the claimant's proposal. That is not the proper business of the court in entertaining a challenge brought under section 288 of the 1990 Act. The claimant has not persuaded me that there has been any error of law in the Inspector's treatment and determination of his appeal. This application therefore fails. 46. MR BANNER: My Lord, I am very grateful indeed for that. I do have an application for costs. Has your Lordship received my statement of costs? 47. THE DEPUTY HIGH COURT JUDGE: I believe I have. 48. MR BANNER: I have a spare to hand if that would be easier. If I can hand that up. (Handed). 49. THE DEPUTY HIGH COURT JUDGE: That would assist me. 50. MR BANNER: A copy has been served on the claimant. 51. THE DEPUTY HIGH COURT JUDGE: Thank you very much. Is this agreed, Mr Poole? You have seen, have you, the statement of costs provided by the Secretary of State? 52. THE CLAIMANT: Yes. 53. THE DEPUTY HIGH COURT JUDGE: Is this agreed? Do you dispute the assessment here? 54. THE CLAIMANT: No, I can't. SMITH BERNAL WORDWAVE 55. THE DEPUTY HIGH COURT JUDGE: No? Very well. Then, Mr Banner, I propose to order that the claimant pays the first defendant's costs, summarily assessed in the sum of £6,792; is that right? 56. MR BANNER: That is right, my Lord. Thank you very much indeed. 57. MISS LAMBERT: My Lord, there is also an application for costs on behalf of the second defendant. My Lord, having seen from the look on your Lordship's face what is thought of that, can I make my submissions for the reason on that? There are two submissions, firstly, that initially West Berkshire District Council was the only defendant, and therefore had to take an active -- 58. THE DEPUTY HIGH COURT JUDGE: The only defendant? 59. MISS LAMBERT: Yes. 60. THE DEPUTY HIGH COURT JUDGE: As originally served? 61. MISS LAMBERT: As originally served. 62. THE DEPUTY HIGH COURT JUDGE: I think the reason for that was this, was it not, that Mr Poole believed that he ought to go against the District Council, rather than against the Secretary of State? When it was explained to him, he promptly set about correcting that error and including the Secretary of State, serving the Secretary of State, and the Secretary of State became the first defendant subsequently. I have to say, I would not be minded to give you your costs on that basis. 63. MISS LAMBERT: My Lord, I do not criticise Mr Poole. 64. THE DEPUTY HIGH COURT JUDGE: It is an understandable error. An error it certainly is, but for a litigant acting in person, it is an understandable error. 65. MISS LAMBERT: What arose from that, in terms of the Council, is that then the Council did take an active role at the beginning of the proceedings and so further costs were involved as a result of that. Then, further to that, the Council took a further active role in assisting in the preparation of bundles, for example. So there were costs involved. 66. THE DEPUTY HIGH COURT JUDGE: I appreciate that. I have to say that the Council is to be applauded for doing that. And I am sure Mr Poole is grateful for that. Indeed, I believe he showed his gratitude in the e-mail correspondence that ensued, but I do not believe that for that reason there is justification in making a second award of costs in this case, Miss Lambert. 67. The claim is dismissed. The claimant is to pay the first defendant's costs, summarily assessed in the sum of £6,792. Is there anything else? 68. MR BANNER: No, my Lord, thank you very much. SMITH BERNAL WORDWAVE 69. THE DEPUTY HIGH COURT JUDGE: I am grateful to all of you. I am grateful, too, that, despite the noise, you have all borne with me as I have given judgment after the normal time for rising in the middle of the day. 70. Thank you all very much. SMITH BERNAL WORDWAVE