Elmbridge Borough Council & Anor v Secretary Of State For Environment, Transport & Regions & Anor [1999] EWHC Admin 824 (22nd October, 1999)

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ELMBRIDGE BOROUGH COUNCIL and RESIDENTS AND LANDOWNERS' GROUP (ELMBRIDGE) v. SECRETARY OF STATE FOR ENVIRONMENT, TRANSPORT AND REGIONS SWAYFIELDS LIMITED [1999] EWHC Admin 824 (22nd October, 1999)

1. A change in government policy in 1992 led to a number of proposals from the private sector to develop Motorway Service Areas ("MSAs") on the western sector of the M25 between Clacket Lane and South Mimms and on the eastern sector of the M4. Eight such proposals were the subject of public inquiries over the period 1994-1998. The Secretary of State eventually decided that there should be only one MSA, at a site called New Barn Farm. By letters dated 22 October 1999 he granted planning permission for New Barn Farm and refused it for the others. The court now has before it challenges to the grant of permission for New Barn Farm and to the refusal of permission for three of the other sites. There is a high degree of interlinkage between the cases, which were heard together.

2. Five sites were proposed on the western sector of the M25. Taking the proposals in chronological order, they were:

(1) Woodlands Park, also known as Iver and frequently abbreviated to "WP", between M25 junctions 15-16. No challenge is brought in respect of the refusal of permission for that site.

(2) New Barn Farm, also known as Downside or Cobham and frequently abbreviated to "NBF", between M25 junctions 9-10. The local planning authority, Elmbridge Borough Council ("Elmbridge" or "EBC"), objected to the development and is the first applicant in the challenge to the grant of permission (CO/4726/99). A local action group, the (Cobham) Residents and Landowners Group ("RLG"), was another principal objector and, through one of its members, is the second applicant. The development was promoted by Swayfields Ltd ("Swayfields"), which appears as second respondent in support of the Secretary of State's decision.

(3) Simplemarsh Farm, also abbreviated to "SF", at M25 junction 11. The promoters were Hadmere Ltd ("Hadmere") and a predecessor company of Totalfina Great Britain Ltd ("Totalfina"). Hadmere and Totalfina are the applicants in the challenge to the refusal of permission (CO/4744/99). The local planning authority, Runnymede Borough Council ("Runnymede"), opposed the development and appears as second respondent in support of the Secretary of State's decision. Swayfields also opposed the development and appears as third respondent.

(4) Elk Meadows, also abbreviated to "EM", between M25 junctions 15-16. No challenge is brought in respect of the refusal of permission for that site.

(5) Warren Farm, also abbreviated to "WF", between M25 junctions 16-17. The site was promoted by a predecessor company of Totalfina, which is the applicant in the challenge to the refusal of permission (CO/4743/99). The local planning authority, Buckinghamshire County Council ("Buckinghamshire"), opposed the development and appears as second respondent in support of the Secretary of State's decision. Again Swayfields also opposed the development and appears as third respondent.

3. Of those five sites, three (Woodlands Park, Elk Meadows and Warren Farm) are north of the M25/M4 junction and two (New Barn Farm and Simplemarsh Farm) are south of the junction.

4. There were, in addition, three proposals for MSAs sited on the M4 but purporting to meet the needs of drivers on the M25. They were:

(1) Great Hazes, also abbreviated to "GH". The promoter was Avalon Enterprises Ltd ("Avalon"), which is the applicant in the challenge to the refusal of permission (CO/4752/99). The local planning authority, Bracknell Forest District Council, was served but has not appeared.

(2) Great Wood, also abbreviated to "GW". No challenge is brought in respect of that site.

(3) A site known as Junction 8-9 (or J8/9) Maidenhead. Again no challenge is brought in respect of that site.

5. Thus the present challenges are brought by disappointed objectors to New Barn Farm and by the disappointed promoters of the rival sites at Simplemarsh Farm, Warren Farm and Great Hazes; and they are resisted by the Secretary of State, by the successful promoter of New Barn Farm and by local authorities which objected successfully to two of the rival sites.

6. I have had the benefit of extensive written and oral submissions from counsel for the following parties: Mr Anthony Porten QC for Elmbridge and RLG, Mr Anthony Smith QC for Hadmere and Totalfina, Mr David Elvin QC for Avalon, Mr Philip Sales for the Secretary of State, Mr Andrew Gilbart QC for Swayfields, Mr Michael Druce for Runnymede, and Mr Rupert Warren for Buckinghamshire. I heard counsel's opening submissions in that order, taking all the applicants before the respondents.

7. When the M25 was completed in 1986 there was only one MSA, at South Mimms, along its entire length of approximately 120 miles. Government policy at that time was for the provision of MSAs by the public sector and for one MSA in each quadrant of roughly 30 miles. MSAs were subsequently opened at Thurrock and Clacket Lane, but there remained a gap of approximately 65 miles in the western quadrant between South Mimms and Clacket Lane.

8. In 1992 Government policy changed so as to make the provision of MSAs a matter for the private sector. The Government continued to favour MSAs at roughly 30 mile intervals throughout the motorway network, but was prepared to provide for infill sites at roughly 15 mile intervals. It was this change which led to the proposals referred to above.

9. In 1998 the Government issued a further policy statement which placed the emphasis on completing the network of MSAs at 30 mile intervals and indicated that infills would be allowed only exceptionally. The statement made specific provision for the M25, stating that it might not be appropriate to apply general MSA policy in unmodified form and that "the Governments intends ... to leave open whether there should be one or two MSAs on the roughly sixty mile stretch of the M25(w) between South Mimms and Clacket Lane until all the relevant Inspectors' reports have been received".

10. Among the principal issues recurring at all the inquiries were (a) the impact of the proposals on the Green Belt and other countryside policies, and (b) their impact on the free flow and safety of traffic on the motorway. As to (a), national policy on the Green Belt was contained in PPG2. In each case it was agreed that the MSA was not an appropriate form of development in the Green Belt and was harmful to the Green Belt; and the central question was whether there were very special circumstances that would outweigh the harm and justify allowing the proposal. As to (b), the Highways Agency objected on policy grounds to any proposal where a fifth motorway lane was proposed or would be required; and the fifth lane issue generated extensive debate of direct relevance to these proceedings.

11. The first proposal to be considered was Woodlands Park. It was the subject of a local inquiry between 22 November and 9 December 1994. In September 1995 the Secretary of State published an interim decision letter stating that he was minded to grant it planning permission.

12. Meanwhile an application for outline planning permission at New Barn Farm had been submitted by Swayfields on 10 May 1995. It was the subject of a local inquiry between 4 September and 1 October 1996. Two of the issues at the inquiry are of particular relevance:

(1) Highways. A statement on highways matters was submitted by the promoter Swayfields, having reached agreement with the Highways Agency which therefore did not appear. The position agreed with the Highways Agency was that a fifth lane would not be required. It was part of the case for Elmbridge and RLG, however, that an MSA at New Barn Farm would require a fifth lane. The traffic forecasts used by the parties were derived from a model known as the WS Atkins model, which had been prepared for traffic assessment of the M25 widening scheme. It is the subsequent history of matters relating to the highways issue that leads to a challenge on grounds of procedural unfairness.

(2) The construction of an underbridge required for access to the site from the westbound carriageway of the M25. The application for outline permission did not include the underbridge. RLG contended that this rendered the application defective. That gives rise to a discrete issue still pursued before this court.

13. The Woodlands Park inquiry was reopened after the New Barn Farm inquiry had closed. The traffic forecasts used at the reopened inquiry, which took place between 26 November 1996 and 31 January 1997, were provided by a new traffic model called NAOMI (New Assessment of M25 Improvements) from the Highways Agency. Because of anomalies in the initial figures (NAOMI 1), there was an adjournment while the Agency produced revised figures (NAOMI 2) which then, with certain further adjustments, became the figures used at the inquiry.

14. On 27 January 1997 Elmbridge wrote to the Government Office for the South East ("GOSE"), setting out its understanding that NAOMI figures were being used at the Woodlands Park inquiry and that the programme had been available to the Highways Agency since January 1996. The letter went on:

"Had it been used to analyse projected traffic flows at the Downside location [i.e. New Barn Farm] its projection would have indicated flows considerably in excess of those presented in evidence submitted to the Downside inquiry with substantial consequences for that proposal. Indeed, the Council is informed that the application of the NAOMI programme to the Downside site demonstrates flows requiring the provision of a fifth lane even in the absence of a Motorway service area. It seems that the Highways Agency has not analysed the merits of the two sites with the degree of consistency which might be expected.

... As it would seem that material available to the Highways Agency has, for whatever reason, been withheld from the Downside inquiry then the rules of natural justice demand that that inquiry be re-opened and that is the formal request of this Council."

The letter went on to threaten High Court proceedings. The suggestion in the letter that the NAOMI model could and should have been used at the New Barn Farm inquiry and was deliberately withheld is not pursued; but the implications of the use of the NAOMI model as compared with the WS Atkins model form part of the issues that are pursued.

15. A letter to similar effect was sent on behalf of RLG to GOSE on 29 January 1997.

16. In replies dated 5 February 1997, GOSE stated that it had asked the Highways Agency to comment on the representations and would forward the Agency's views in due course. In the absence of any view from the Agency it was not possible at this stage to form a view on the requests to re-open the inquiry. Reference was made to the existence of a number of competing proposals. The letter went on:

"Although we are obviously mindful of the need to determine appeals quickly, the fact that three of the potential sites, Downside, Iver and Simplemarsh Farm, are the subject of appeals somewhere in the system, inevitably leads to consideration of whether it would be appropriate for the Secretary of State to take a composite view of the provision of MSA facilities on the western sector of the M25. No final conclusions have been reached, but our present inclination is to wait at least until the report of the Iver inquiry is available before proceeding to determine the Downside appeal."

17. The Agency's response to the representations about the traffic figures was sent to Elmbridge and RLG by GOSE on 6 August 1997. The response took the form of a document described as Technical Note 7 ("TN7"). TN7 concluded that there was no significant difference between the traffic flows predicted by the WS Atkins model at the New Barn Farm inquiry and those which would have been derived from NAOMI. GOSE's letter concluded:

"In the circumstances, I am not at this stage seeking your comments on the Highways Agency's response. Whilst it was obviously necessary to obtain the Agency's view in order that the Secretary of State could be informed on the matters being raised, our next step, particularly now that the Woodlands Farm report is available, is to proceed to decide how to handle the various proposals rather than put you and other parties to possibly abortive work and expense in submitting what could prove to be unnecessary additional evidence. I can assure you, however, that if it subsequently becomes clear that the further evidence supplied by the Agency will affect the decision on the appeal, you and the other parties will be invited to submit representations before any final decision on the appeal is taken" (emphasis added).

Elmbridge places particular weight on the emphasised passage in relation to the issue of procedural unfairness.

18. On 10 September 1997, GOSE issued an interim decision letter in respect of New Barn Farm. The letter enclosed the report of the inspector. In the list of main issues the inspector identified highways issues, including the need for a fifth lane on the M25. Having analysed the material before him, he did not accept on balance that there would be a convincing need to provide a fifth lane or that the appeal should be refused because of the loss of capacity on the M25. He reached an adverse view, however, mainly on grounds of intrusion into the countryside. His overall conclusion (para 12.51) was in these terms:

"There is need for one new MSA between Clacket Lane and South Mimms on the M25 motorway. The need is sufficient to set aside the Green Belt presumption against this inappropriate development. But objections to intrusion into the countryside at Downside, (together with less persuasive objections) are such that, if a materially less harmful project on another part of the M25 between the appeal site and Iver can be found, the Downside MSA project should be refused planning permission."

"I recommend that planning permission is not granted for the construction of the proposed Downside MSA. But, if both the Iver and Simplemarsh Farm MSA projects are refused planning permission, the need for an MSA in the 65 mile gap between Clacket Lane and South Mimms on the M25 motorway should be met by this project at Downside. On the evidence before me, no better alternative site seems to be immediately available."

20. The interim decision letter went on to note and comment on the issues identified by the inspector in his report. In relation to the highways issue, it stated that the Secretary of State had not formed a view, given the post-inquiry correspondence. The letter concluded:

"Having considered the above issues, the Secretary of State is minded to refuse planning permission for the proposed MSA at Downside because of the harm to the Green Belt and to the countryside and because there may be an alternative site or sites which would have fewer and/or less harmful effects than the Downside proposal. He thinks that it is appropriate, before reaching a decision on the appeal, to consider whether such an alternative site exists, but he is not yet in a position to consider fully the merits of the alternative proposals because these are the subject of inquiries due to commence shortly. He therefore proposes to defer the final decision on your clients' appeal until he is in a position to consider whether there is a more acceptable site or sites than Downside for a motorway service area on the western sector of M25."

21. The interim decision letter also referred to the outstanding question of representations on the Highways Agency's further evidence:

"Since the inquiry the Secretary of State has received representations about the evidence presented by the Highways Agency. These representations have been circulated to the main parties, and a copy of the Agency's response was sent to these parties on 6 August. No additional representations were invited at that stage since it was not clear to what extent that response would affect the decision on appeal, but an assurance was given that if it subsequently became clear that the further evidence supplied by the Agency would affect the decision, further representations would be sought before a final decision was taken."

Thus there was a further clear acknowledgement of the assurance previously given. Elmbridge and RLG were among those to whom copies of the letter were sent.

22. By letter dated 12 September 1997 Elmbridge acknowledged receipt of the interim decision letter and, notwithstanding the fact that no additional representations were being invited at that stage, sent GOSE a copy of a response prepared by Elmbridge's consultants to the Highways Agency's TN7, saying:

"It is noted that the Secretary of State has not yet reached a conclusion on the highways issues and I trust, therefore, that you consider it appropriate for the Council to respond to the Highways Agency's Technical Note prepared in July."

23. The New Barn Farm inquiry was followed by four inquiries into proposals for the M25 and two into proposals for the M4. To a very large extent the inquiries also post-dated the New Barn Farm interim decision letter. The dates of the material inquiries were as follows: Great Hazes and Junction 8/9 Maidenhead, from 7 January 1997 to 5 December 1997; Simplemarsh Farm inquiry, from 16 September 1997 to 11 February 1998; Elk Meadows, from 7 October to 21 November 1997; and Warren Farm, from 8 September 1998 to 21 October 1998. Save for the joint inquiry into Great Hazes and Junction 8/9 Maidenhead, the inquiry into each proposal was conducted by a different inspector.

24. All of the inquiries involved consideration of alternative sites, including highways issues.

25. At the Simplemarsh Farm inquiry cases comparing the suitability of New Barn Farm and Simplemarsh Farm were presented, though the arguments on highways issues related more to Simplemarsh Farm itself rather than to New Barn Farm. The Highways Agency had recommended refusal of permission and an Agency witness gave evidence in opposition to the appeal.

26. At the Elk Meadows inquiry the Highways Agency appeared in order to object to the proposal on highways merits. It submitted a document referred to as HA4, which was derived in part from TN7 but also covered additional issues. There was extensive debate involving the promoters (Caswell), Elmbridge/RLG, Swayfields and Totalfina. For example Totalfina, to promote its interest in Simplemarsh Farm and Warren Farm, attended to argue that both sites were preferable to Elk Meadows or New Barn Farm, and made submissions to the effect that, contrary to TN7/HA4, the traffic flows adopted at the New Barn Farm inquiry were too low.

27. At the Warren Farm inquiry there was a further debate about the correct approach to assessing traffic flows and weaving effects at New Barn Farm, this time involving the promoters (Totalfina), Elmbridge/RLG and Swayfields. Caswell also appeared. The Highways Agency did not appear. Documents known as TOT22 and EBC2, both of which sought to undermine the analysis set out in TN7/HA4, were submitted to the inquiry by Totalfina and Elmbridge/RLG respectively.

28. At each of those inquiries (Simplemarsh Farm, Elk Meadows and Warren Farm) Elmbridge and RLG made joint oral and written submissions through counsel. In each case they sought to counter representations to the effect that the site in question should be rejected in favour of New Barn Farm. As indicated, they relied on the evidence concerning traffic flows that had emerged since the date of the New Barn Farm inquiry. Their involvement was, however, a limited one in each case. They did not call evidence or cross-examine witnesses. The stance adopted by them is indicated by the following extracts from the written submissions of their counsel at each inquiry:

"All this is of no importance if the SoSE goes on to dismiss NBF as he is minded, but if he comes to look again at NBF as a potential candidate he has indicated that further evidence on these issues will be sought .... In their January 1997 submission both EBC and RLG requested that the Inquiry be re-opened; if necessary that request will be renewed. We take the view that it is already apparent on the information now seen that any decision taken to allow NBF without giving the objectors the opportunity to test the HAg evidence at Inquiry would be susceptible to challenge."

"This Inquiry is not a re-opening of the NBF Inquiry: it has lasted long enough as it is; both EBC and RLG have taken the view that it was not appropriate to call evidence, cross-examine or otherwise enter the arena other than by these short submissions. We have an assurance from GOSE that, if necessary, there will be a further opportunity to deal with NBF in its own right. What concerns us is the risk that limited (and very selected) evidence on NBF at this and other Inquiries should, by a side wind, unfairly present NBF in a more favourable light than would be the position when that evidence is tested and countered by EBC and RLG as the principal objectors to NBF. None of the parties at this Inquiry has the same interest as we do in opposing NBF.

Our submission is that no conclusions favourable to NBF should be reached at this Inquiry; it follows, consistently, that we cannot invite any final conclusions on the points we make when we have called no evidence, but we can put forward enough by way of submission to demonstrate that there are live issues on which, if we are right, NBF may be found to be unacceptable and/or more objectionable than other alternatives ...."

"The main thrust of our submissions is to urge that, when comparison is made with alternative sites, no conclusions favourable to NBF should be reached on the basis of the untested representations made to this Inquiry. Although there has been an NBF Inquiry which produced conclusions on GB and countryside aspects, the case against NBF is not complete on highways and related issues."

29. Mr Ian McCoy, Elmbridge's Principal Legal Adviser (Planning Law), states in his witness statements that Elmbridge acted throughout this period in the expectation, grounded on the assurance given in GOSE's letters of 6 August and 10 September 1997, that if the Secretary of State were to take into account any fresh evidence from the Highways Agency that might affect the decision in respect of New Barn Farm, Elmbridge would be given the opportunity to make representations on it. The consultants' report submitted on 12 September 1997 was not regarded as the taking up of the opportunity to respond in detail if necessary; and if it had been suggested that no further opportunity was to be offered, it is most likely that the council's response would have been quite different. Had it been thought that what happened at the subsequent inquiries would be relied upon to justify a failure to give any further opportunity to deal with the Highways Agency's evidence or to refuse to re-open the New Barn Farm inquiry, the council's participation in those other inquiries would have been very different.

30. Similarly Mr Craig Noel of Strutt & Parker, who acted throughout on behalf of RLG, says in his witness statement that the decision not to call evidence at the Simplemarsh Farm, Elk Meadows and Warren Farm inquiries, but to make short submissions only, and the decision not to submit further evidence to the Secretary of State until invited to do so were made in reliance on the assurances that further opportunity would be given to make representations on evidence produced by the Highways Agency if such evidence were going to be taken into account in any final decision.

31. In their reports on the various proposals, each of the inspectors considered the issue of alternative sites.

32. The report of the inspector on the re-opened Woodlands Park inquiry, in dealing with highways issues, observed (at para 15.30) that there had been a considerable amount of attention focused on the traffic flows and methodology applied at other inquiries. He described such evidence as "variously anecdotal, incomplete, fragmented and selective, and hence of limited weight" and said that for those reasons it would be improper to comment in detail or draw any firm conclusions concerning the data or methodology used in those cases. In his examination of alternative sites he stated of New Barn Farm:

"At the present inquiry, the evidence on NBF has been in the form of written submissions not tested by cross-examination. Accordingly I feel it would be inappropriate for me to attempt to consider whether or not NBF would be preferable as a single alternative to WP."

His overall conclusion on alternative sites, however, was that other sites were to be preferred to Woodlands Park (para 15.63):

"In the light of the foregoing considerations I conclude that there are alternative MSA sites available either singly (EM) or in combination (NBF/WF, SF/WF), which might have a less adverse impact than the appeals proposals in a number of important respects including variously the Green Belt .... Additionally the 'two-site' combinations (NBF/WF, SF/WF) would not breach the Government's 'D5' [five-lane] policy and would meet the needs of M25 western quadrant users to a greater extent than either WP or EM."

This led to his recommendation that the appeals against the refusal of planning permission for Woodlands Park should be dismissed.

33. The Simplemarsh Farm inspector reached the view that the Simplemarsh Farm proposal was objectionable on grounds of substantial harm to the Green Belt and other harm to amenity and to the free flow and safe movement of traffic. He made clear that in appraising alternative sites he bore in mind that "full evidence in those cases has not been disclosed at this inquiry" and the evidence for each site had been put at different periods over a number of years, during which some relevant policies may have changed or been developed, M25 predicted traffic flows had been updated and there had been a greater awareness of pressure on Green Belts (para 8.46). After giving his appraisal, he expressed the following conclusions (paras 8.53 and 8.56):

"Weighing all the above matters, I consider that there are alternative sites where a MSA would give rise to less harmful effects than would be the case with Simplemarsh Farm, yet would meet the needs of motorists at least as effectively as the appeal proposal.

[In relation to the possibility of a two site provision:] ... [T]he only realistic pairing of MSAs would be one north and one south of the M3 and M4 motorway junctions. New Barn Farm would be the only alternative to Simplemarsh Farm south of the M3. In respect of impact on the Green Belt, highways safety and traffic flow, standard of access and the satisfaction of drivers' need, and the effect on residential amenity, New Barn Farm would be less harmful than Simplemarsh Farm."

34. The Elk Meadows inspector, in relation to the issue of alternative sites, took the view that no firm conclusions could be reached:

"A comparison of the EM scheme with other proposals for an MSA or MSAs serving this sector of the M25 is a material consideration in this case. However, I agree with the comments made on behalf of Elmbridge Borough Council and the Residents and Landowners Group ... that a full and thorough comparison cannot be made between the various proposals because those parties promoting or objecting to other sites have not presented comprehensive evidence to the EM inquiry. My conclusions on alternative sites must therefore be limited to matters of fact and general observations based on the limited evidence available to me" (para 16.69).

In relation to New Barn Farm, he examined the highways evidence and the effect on the Green Belt, concluding (at paras 16.80-16.83):

"There appears to be some justification in the argument that traffic flows may be greater at NBF than were originally predicted at the NBF inquiry, although not necessarily to the extent suggested by the promoter of EM ....

The evidence before me on this matter is contradictory, limited and some of it is speculative. In my opinion, it is insufficient to assess the merits of the evidence presented to the NBF inquiry .... I am not convinced that the evidence before me is not so compelling that I should give very little weight to the Inspector's conclusions on the highway issues at the NBF inquiry as suggested by EBC and RLG. Nevertheless, as in the case of the EM proposal, it is clear that the NBF proposal would utilise a significant proportion of the available spare capacity of the motorway at J9-J-10 and could contribute to future congestion in the area.

The limited evidence available to me on NBF also restricts any conclusion I can draw with regard to the impact of that scheme on the [Green Belt] ...."

The inspector's final conclusion was that both Simplemarsh Farm and New Barn Farm were preferable in overall terms to Elk Meadows, unless further consideration of those sites indicated that they were unacceptable because of their impact on the highways network. As there appeared to be preferable alternatives, whether a single or two site solution were adopted, he concluded that the Elk Meadows proposal did not represent the very special circumstances necessary to justify such inappropriate development at that location in the Green Belt.

35. The Warren Farm inspector came out against the grant of planning permission for Warren Farm. In his appraisal of alternative sites, he stressed that, although evidence on the impacts of four other MSA proposals had been adduced at the inquiry and in written representations, it was not as comprehensive as that relating to Warren Farm and had not been tested to the same extent through cross-examination, so he was not able to place the same weight on it (para 7.95). On highways issues, he said of New Barn Farm:

"... I note that new evidence not available to the Inspector suggests that there would be a need for an additional lane to accommodate weaving, though I agree that this is not the appropriate forum for assessing such matters" (para 7.123).

So far as the evidence available allowed, he concluded that in highways terms Warren Farm would be the least harmful of the five proposals considered, though he stressed that there seemed to be "important unresolved highway issues" in the case of both Simplemarsh Farm and New Barn Farm (para 7.125). His overall conclusion, however, was adverse:

"Taking first the single-site scenario, WF is the most harmful of all the alternatives in GB [Green Belt] terms and the need could be met significantly more effectively at other single sites that would be less harmful to the GB. Furthermore, the need could be met more than twice as effectively by pairs of the alternatives, one pair of which would together be little more harmful to the GB than WF alone. Notwithstanding that WF would be the least harmful in terms of impact on the motorway but having regard to the other harm I have identified, I have come to the conclusion that as a single site it could not be justified as an exception to the general presumption against inappropriate development in the GB nor, in the face of strong development plan policy conflicts, are there material considerations that indicate a decision otherwise than in accordance with the plan.

In a two-site strategy, any pair including WF as the northern site would be more harmful to the GB than one using EM or WP, considerably more so than the EM/SF pair, and would be less effective in meeting need ...." (paras 7.129-7.130).

36. The position of the Secretary of State following receipt of the various inspectors' reports is set out in the first witness statement of Miss Avis Gerry, a senior executive officer at GOSE who had conduct of the various appeals and was responsible for drafting the decision letters under challenge. She says that further requests to re-open the New Barn Farm inquiry were received, this time from Totalfina. She was concerned as to the implications of the highways issues at New Barn Farm, which had been left open in the interim decision letter. She was also concerned to be even-handed as between all the various parties to the different cases. On the other hand, she was reluctant to re-open any of the inquiries or, "as would probably have been required", to convene a single inquiry dealing with all the sites. That would have been very time-consuming and she did not want to lengthen what had already been a very long process. She therefore dealt with matters as follows:

"I considered it essential to confirm that the Highways Agency's position had not changed since the exchange of correspondence in 1997 and wrote to the Agency on 14 April 1999 ... enclosing the two documents, EBC2 and TOT22, which were the basis of the allegations about the need for an additional lane at New Barn Farm. The Highways Agency responded on 30 July 1999, commenting on the two documents, enclosing a report from their consultants, and concluding that their position was that they continued to object to all of the M25 proposals currently under consideration by the Secretary of State other than Warren Farm and New Barn Farm .... I understood from the Agency's letter that the various issues raised in EBC2 and TOT22 had been dealt with at previous Inquiries ....

Having carefully considered the letter of 30 July 1999, I concluded that it served merely to confirm the Agency's longstanding position and did not add anything new which would influence the Secretary of State's decision on New Barn Farm. The accompanying technical report by MVA contained material which I understood to have already been the subject of cross-examination at the Inquiries into subsequent MSA proposals, especially the Elk Meadows Inquiry. EBC and RLG, and the promoters of the Simplemarsh Farm and Warren Farm sites had been represented at those Inquiries, just as they had been represented at the New Barn Farm Inquiry, and by the stage of the Elk Meadows Inquiry it had been clear that arguments about the comparative highways merits of the competing sites were being addressed in the course of the Inquiries. I considered, therefore, that all parties had had an adequate opportunity to challenge the points made about highway congestion at New Barn Farm in the process of the public inquiries and that further information from the parties on this issue was not required. I concluded that I was under no obligation to refer the Agency's letter or the accompanying MVA report to the parties to the New Barn Farm inquiry" (paras 18-19).

37. GOSE's letter of 14 April 1999 to the Highways Agency had requested a response "in a form that can be circulated to the interested parties or appended to the decision letter". The response dated 30 July 1999 stated that in order to address the issues raised in EBC2 and TOT22 the Agency had commissioned further work from MVA, the consultants who had been responsible for advising it on all the competing proposals other than Woodlands Park. Their instructions were to update the Agency's comparative assessment of the appeal sites originally presented at the Elk Meadows inquiry. Weaving lengths for New Barn Farm were recalculated. The letter attached a copy of the MVA report "which you may wish to circulate to interested parties". Its annexes included a list of issues raised in EBC2 and TOT22 and set out the Agency's response to each based on MVA's findings. The response states, for example, that "the MVA weaving assessments for New Barn Farm show that a fifth lane is not necessary." The letter concluded:

"Having considered the results of the further MVA work and the issues set out more fully in the annexes, the Agency's position is that it continues to object to all of the M25 proposals currently under consideration by the Secretary of State other than Warren Farm and New Barn Farm."

38. For the reasons given by Miss Gerry, GOSE (on behalf of the Secretary of State) proceeded to reach decisions on the various proposals without referring any of that material back to the parties or re-opening any of the inquiries.

39. In the decision letter for New Barn Farm, dated 22 October 1999, reference was made to the correspondence concerning the highways issue, culminating in the Highways Agency's response of 30 July 1999. A copy of that response was attached to the decision letter, but the accompanying MVA report was omitted by an oversight and was supplied subsequently on request. The decision letter continued:

"This correspondence has been taken into account by the Secretary of State in determining the appeal, but is not considered to raise new evidence requiring wider reference back to the inquiry parties, either under Rule 16 of the Town and Country Planning (Inquiries Procedure) Rules or in the interests of natural justice, prior to making his decision.

The Secretary of State has received requests to re-open the inquiries into some or all of the proposals in order that highway and green belt impact may be considered by one Inspector. He takes the view that these matters have been fully aired at the inquiries into the respective proposals and he considers that he is sufficiently informed on those matters to enable him to reach decisions on the basis of the evidence available which ... has been made available to all the main parties" (paras 6 and 8).

40. The decision letter went on to state that the Secretary of State agreed with the inspector about the issues most relevant to the decision. He agreed that the proposals constituted inappropriate development in the Green Belt and had proceeded to consider whether there were very special circumstances that would outweigh the harm and justify allowing the proposals. He agreed with the inspector in relation to the Green Belt and relevant policies. On other issues (para 12):

"The Secretary of State agrees with the Inspector's conclusions about the effect on the countryside and landscape ..., noise and air pollution ... and ecology .... He considers that there is nothing in the post inquiry representations or subsequent advice from the Highways Agency to cause him to disagree with the Inspector's conclusions ... on highways issues. The Secretary of State considers that there is no reason to refuse permission for the proposal on highways grounds. So far as crown land is concerned, he agrees with the Inspector ... that there is no undue problem with granting a planning permission for the MSA prior to, but dependent on, the satisfactory completion of necessary agreements."

41. The decision turned to consider need and alternative sites. The Secretary of State considered that a clear and compelling case had been established for some additional MSA provision to serve traffic on the western sector of the M25. As the need was for services for motorists on the M25, it was reasonable to consider which, if any, of the five sites on that motorway was acceptable before considering whether any of the M4 sites should be allowed to help meet the need for facilities on the M25. He had looked at each of the competing proposals initially on its merits and each was the subject of a separate decision letter. But in each case he had considered, having regard to the other inspectors' reports, whether there was an alternative site which would have fewer and/or less harmful effects. His overall conclusions were these:

"Having carefully considered the objections and the respective cases put forward in support of the other proposals, the Secretary of State's overall conclusion is as follows. He considers that the Warren Farm site is not appropriately located to serve as a single site, despite the advantages in highways terms over some of the other sites. He takes the view that the Elk Meadows proposals are to be preferred to those at Woodlands Park, but that because of the safety hazard presented by the short weaving distance between the proposals and Junction 16, neither should be allowed. He considers that the highways objection to the access arrangements at the Simplemarsh Farm site is over-riding.

In the case of each of the sites on the M4 the Secretary of State has accepted that an MSA would result in significant harm to the Green Belt. He has concluded that it has not been demonstrated that there is a clear and compelling safety need which would justify the provision of additional facilities between Reading and Heston to serve the M4 in isolation. Although the gap of over 30 miles between services at Reading on the M4 and those at South Mimms and Clacket Lane on the M25 is a material consideration that could weigh in favour of some additional provision on the M4 to serve motorists travelling to and from the M25, he considers that none of the M4 sites has significant advantages over the New Barn Farm site in terms of spacing, planning or highway considerations that would warrant making the additional provision other than on the M25. Accordingly, he has concluded that none of the other potential sites would give rise to less harmful effects than would be the case with New Barn Farm. In his view, notwithstanding the harm to the Green Belt, in the absence of a more suitable alternative site, the need for an MSA between Clacket Lane and South Mimms should be met by this project at New Barn Farm, as recommended by the Inspector. In his view, this constitutes very special circumstances that justify allowing inappropriate development in the Green Belt and is a material consideration of such weight as to indicate that he should determine the appeal otherwise than in accordance with the development plan.

The Secretary of State has considered whether a second MSA should be allowed, on the M25 or the M4 in order to help meet the need for facilities on the M25 .... In his view, the benefit to motorists on the M25/M4 of having a second MSA to serve their needs is outweighed by the harm to the Green Belt" (paras 17-19).

42. In separate decision letters of the same date, planning permission was refused for each of the other sites. The decision letters all covered the same general ground as that for New Barn Farm. As to their individual features, I shall deal here briefly with the three decisions that are the subject of specific challenge: Simplemarsh Farm, Warren Farm and Great Hazes.

43. In relation to Simplemarsh Farm the Secretary of State agreed with the inspector that the proposal was in clear conflict with the provisions of the development plan in respect of the Green Belt and that the damaging effects on this part of the Green Belt would be substantial. On highways matters he agreed with the inspector's overall conclusions on highways and traffic matters, including in particular that the deficiency in the standard of access would be sufficient to justify refusal of planning permission (this referred to obvious queuing on the slip roads leading to the MSA, which would deter potential users) and that the effects of weaving on the M25, whilst not sufficient to warrant refusal of permission, added some weight to the unacceptability of the proposals as a whole. Accordingly the special circumstances in the case did not justify allowing inappropriate development.

44. In relation to Warren Farm the Secretary of State accepted the inspector's view that there would be no significant difficulties with weaving lengths and that the proposed MSA would cause no appreciable operational or safety problems. However, he also agreed with inspector's view that Warren Farm would perform worse as a single MSA in terms of reducing the number of vehicle-miles in excess of 30 miles (i.e. in meeting drivers' need) and that Warren Farm as a single site was the most harmful of all the alternatives in Green Belt terms. Here too, for the reasons given in the New Barn Farm decision letter, he had concluded that there was an alternative site on the M25 where an MSA would give rise to less harmful effects than would be the case with Warren Farm.

45. In relation to Great Hazes the Secretary of State agreed with the inspector that the harm to the Green Belt would be substantial and would be aggravated by additional serious harm to the countryside. He shared the inspector's view that the harm would not be overcome by the proposed measures of mitigation to obscure much of the scheme from view, and that the potential benefits did not outweigh the harm. He considered that it had not been demonstrated that there was a clear and compelling need or safety case which would justify the provision of additional facilities between Reading and Heston to serve the M4 in isolation. As to whether any additional provision was needed on the M4 to serve drivers travelling on the M25, he had considered first what level of additional MSA provision should be made for services on the M25 itself. He had concluded that one MSA should be allowed on the M25 and that New Barn Farm was the preferred site. He recognised that the gap between services at Reading on the M4 and those on the M25 was a material consideration that could weigh in favour of some additional provision on the M25. But he took the view that the benefit to motorists on the M25/M4 of having a second MSA to serve their needs was outweighed by the harm to the Green Belt.

46. The various challenges to those decisions have resulted in a large number of issues being canvassed before me, with different points and shades of emphasis coming from the different applicants. I shall deal with the issues under the following main headings, which also identify the party or parties by which they were raised:

(4) technical highway issues (which are part and parcel of the natural justice arguments but are placed in a separate section for ease of exposition);

(7) breach of the Assessment of Environmental Effects Regulations (Elmbridge/RLG);

47. I shall set out material conclusions on those issues as I go along, enabling me to deal with my overall conclusions briefly at the end of the judgment.

48. For Elmbridge and RLG, Mr Porten submits that in proceeding as he did without inviting representations on the highways material that post-dated the New Barn Farm inquiry, the Secretary of State was in breach of rule 16(4) of the Town and Country Planning (Inquiries Procedure) Rules 1992, which provides:

(b) takes into consideration any new evidence or new matter of fact (not being a matter of government policy),

and is for that reason disposed to disagree with a recommendation made by the inspector, he shall not come to a decision which is at variance with that recommendation without first notifying the persons entitled to appear at the inquiry who appeared at it of his disagreement and the reasons for it; and affording to them an opportunity of making written representations to him within three weeks of the date of the notification, or (if the Secretary has taken into consideration any new evidence or new matter of fact, not being a matter of government policy) of asking within that period for the re-opening of the inquiry."

If a request is made by the local authority under rule 16(4) for the re-opening of the inquiry, under rule 16(5) the Secretary of State is required to accede to it.

49. On this issue I do not think it necessary to set out the submissions for the various parties in any detail. The points are straightforward and my conclusions on them are clear.

50. First, I have no doubt that the Secretary of State did take into consideration "new evidence" as referred to in the rule. As it seemed to me, that became common ground in the course of the hearing, and it was certainly not the subject of vigorous argument to the contrary.

51. In my judgment, however, the Secretary of State was not for that reason "disposed to disagree with a recommendation made by the inspector." It is convenient to repeat the relevant passage from the report of the New Barn Farm inspector:

Mr Porten submits that in that passage the inspector made two separate recommendations: (a) not to grant planning permission for New Barn Farm, and (b) to grant permission for New Barn Farm if permission was refused for both Woodlands Park and Simplemarsh Farm. In the final decision, it is submitted, the Secretary of State disagreed with recommendation (a), in that he decided to grant planning permission for New Barn Farm; and he did so because of the new evidence, without which he could not have reached his decision. I reject that submission. I think it plain that the inspector was making in substance a single recommendation in which the outcome was conditional on what happened in relation to Woodlands Park and Simplemarsh Farm: if either of them was granted planning permission (as being materially less harmful), then permission should be refused for New Barn Farm, but if both of them were refused permission, then permission should be granted for New Barn Farm. The Secretary of State agreed with that recommendation, refused permission for Woodlands Park and Simplemarsh Farm (as being materially more harmful) and granted it to New Barn Farm.

52. It follows that the requirement to give Elmbridge and RLG the opportunity to make representations and ask for a re-opening of the inquiry was not engaged. There was no breach of rule 16(4).

53. In the circumstances I do not need to go on to consider the submission of Mr Sales for the Secretary of State that even if there was a failure to comply with the requirement of rule 16(4), the interests of Elmbridge and RLG were not "substantially prejudiced" by that failure and the failure should not therefore lead to the quashing of the decision (see Town and Country Planning Act 1990, s.288(5)(b)). For essentially the same reasons as are given below in the context of natural justice, if I had found a breach of rule 16(4) I would have held that it caused substantial prejudice to Elmbridge and RLG.

54. The Inquiries Procedure Rules do not exhaust the general requirements of procedural fairness. Mr Porten bases a much more powerful argument upon those general requirements. He submits that the Secretary of State acted unfairly and in breach of natural justice by taking into account the Highways Agency evidence that post-dated the New Barn Farm inquiry without giving Elmbridge and RLG an opportunity to make representations on that evidence. He points out (though I do not think that this really advances matters) that the Highways Agency and its consultants, MVA, did not appear at the New Barn Farm inquiry itself, since agreement had been reached with Swayfields on highways matters, and they were therefore not cross-examined by Elmbridge or RLG. More importantly, after the inquiry the Agency produced the new NAOMI model, the documents TN7 and HA4, and the letter of 30 July 1999 and attachments, including the MVA report. Because of the assurances in the letters of 6 August and 10 September 1997, Elmbridge made only brief representations on TN7, and RLG did not make any, and there was only limited involvement at subsequent inquiries, including the Elk Meadows inquiry where HA4 was put in by the Agency. In any event no opportunity whatsoever was given to make representations on the Agency's letter of 30 July 1999 and its attachments. Elmbridge and RLG would have had points of substance to make on the Highways Agency material, which they say was flawed and on proper analysis can be shown to support the case that the New Barn Farm development would require a fifth lane (a fundamental objection to the development).

55. Mr Porten puts his case on the basis of domestic law, accepting that the ECHR does not add to the substance of the case. For the main thrust of his submissions he relies on a number of authorities, including Bushell v. Secretary of State for the Environment [1981] AC 75, 102A-B, Binney v. Secretary of State for the Environment [1984] JPL 871, Reading Borough Council v. Secretary of State for the Environment (1985) 52 P&CR 385, 405-407, and R v. Secretary of State for the Environment, ex p.GLC [1986] JPL 32, 36. Some of those authorities are more pertinent than others, but I do not think it necessary to look at any of them in detail, since the broad principles of procedural fairness are not in dispute and what is really in issue is how they bite on the particular facts of this case.

56. Closely related to the general argument on procedural fairness is a specific argument as to breach of legitimate expectation. It is submitted that the assurances given in the letters of 6 August and 10 September 1997 constituted an express promise, or a "clear and unambiguous representation", that Elmbridge and RLG would be given an opportunity to make further representations before any final decision was taken if new evidence from the Highways Agency would affect the decision. There was sufficient to create a legitimate expectation on the part of Elmbridge and RLG. As to the relevant principles, reliance is placed on R v. Jockey Club, ex p. RAM Racecourses [1993] 2 All ER 225, 236-237, summarising the effect of cases such as Attorney General of Hong Kong v. Ng Yuen Shiu [1983] 2 AC 629 and R v. Board of Inland Revenue, ex p. MFK Underwriting Agencies Ltd [1990] 1 WLR 1545.

57. The language of "affect the decision", it is submitted, goes much wider than "disagree with a recommendation" in rule 16(4) of the Inquiries Procedure Rules. Evidence affects a decision if it is taken into account and influences the decision. The Highways Agency evidence plainly affected the decision here. The Secretary of State felt unable to make the decision until the evidence had been received. It was taken into account and was critical to the decision. In proceeding in that way, without giving Elmbridge and RLG the opportunity to make representations on the evidence, the Secretary of State acted in breach of legitimate expectation.

58. Whether the case is put in terms of breach of natural justice or breach of legitimate expectation, it is submitted that loss of the chance to make representations constituted substantial prejudice and should lead to the quashing of the decision. The very risk that further representations might have influenced the decision is enough: see Performance Cars Ltd. v. Secretary of State for the Environment (1977) 34 P&CR 92, 99. A similar approach is to be found in an authority on substantial prejudice of which Mr Elvin has helpfully reminded me, Fulford v. Secretary of State for the Environment (Court of Appeal transcript, 12 December 1997). In that case the Court of Appeal, in overturning a decision of my own, stated that the test should not be turned into one which it is very difficult to fulfil: except in a clear case the court cannot know and is not expected to exercise its own judgment as to whether the presence of this or that piece of evidence would have turned the scales.

59. Mr Sales submits, and it is common ground, that natural justice requires that a party is afforded a reasonable opportunity of learning what is alleged against him and of putting forward his own case in answer to it (per Lord Diplock in O'Reilly v. Mackman [1983] 2 AC 237, 279). The court should give great weight to the decision-maker's own view of what is fair (see per Schiemann LJ in Warren v. Uttlesford DC [1997] JPL 1130, 1135). Particular weight should be given to the views of the decision-maker where the content of its material decisions are highly technical and remote from ordinary judicial experience (cf. R v. Ministry of Defence, ex p. Smith [1996] QB 517, 556) and where the matters at issue are matters of planning judgment (per Lord Clyde in City of Edinburgh v. Secretary of State for Scotland [1997] 1 WLR 1447, 1459). It is not unfair to be deprived of an opportunity to argue more persuasively for a point already covered (Warren v. Uttlesford DC, above, at 1136).

60. Mr Sales submits that for a proper understanding of the issues one needs to follow the debate over time. The primary matter is the assessment of the volume of traffic. It started with the WS Atkins model used at the New Barn Farm inquiry, which did not lead to the conclusion that a fifth lane was required. Thereafter NAOMI emerged as the preferred model. In its document TN7 the Highways Agency compared the WS Atkins and NAOMI models for the assessment of traffic flows and concluded that there was no significant difference and that the reasoning of the New Barn Farm inspector was therefore valid. TN7 was sent to Elmbridge/RLG on 6 August 1997. Elmbridge responded on 12 September 1997, its response being detailed and containing no suggestion that it was anything other than a full response. It became clear that there would need to be some comparison of sites, so thereafter all parties recognised their interest in attending other inquiries. The debate on traffic flows at New Barn Farm came to a head at the Elk Meadows inquiry, where the promoter Caswell advanced the case that Elk Meadows was better than New Barn Farm and sought to show that a fifth lane was required at New Barn Farm on NAOMI figures. Elmbridge and RLG supported Caswell on that issue. They put forward the same representations as Elmbridge had submitted in response to TN7. Totalfina also put forward representations. The Highways Agency put in HA4, which was derived from TN7 though it also raised a new point concerning turn-in rates. The Agency put forward a witness who was cross-examined on the issues. The inspector followed the Highways Agency's view, or at the very least accepted that there was not sufficient evidence to prevent the placing of significant weight on the conclusions of the New Barn Farm inspector. There followed the Warren Farm inquiry, which the Highways Agency did not attend. In that inquiry Elmbridge/RLG and Totalfina sought to resurrect the Elk Meadows points and to that end put forward their respective documents EBC2 and TOT22, though there was no full debate on the issue and the inspector registered uncertainty and concern about it. That led GOSE to check with the Highways Agency whether EBC2 and TOT22 did represent new evidence causing the Agency to change its view. The response of the Agency was to the effect that they did not represent new evidence and did not affect the highways case in respect of New Barn Farm.

61. Against that background it is submitted that Elmbridge and RLG had, on any view, a reasonable opportunity to comment upon the methodology and conclusions of TN7. Elmbridge submitted a detailed report on it. Elmbridge and RLG made joint submissions to subsequent inquiries criticising TN7/HA4 and covering the relevant issues, including the assessment of traffic flows and the issue of turn-in rates. In particular there was a full debate on the merits of them at the Elk Meadows inquiry, which was determined in favour of the Highways Agency's position that no fifth lane was required at New Barn Farm. The technical evidence of Elmbridge and RLG in this case seeks to re-argue points which they have already argued and lost at Elk Meadows.

62. As to the failure to circulate, prior to the decision letters, the Highways Agency's letter of 30 July 1999 and enclosed MVA report, the MVA analysis followed the methodology and conclusions of TN7, using variables which were either not contentious or had been determined at inquiry. Elmbridge and RLG had had a reasonable opportunity to comment upon the analysis adopted in the MVA report, since it was the same in all material respects as that in TN7 and HA4. Moreover the Secretary of State was entitled to take the view that there was nothing that they were holding back and might still need to put.

63. Further, there is no such thing as a technical breach of natural justice, and an applicant must show substantial prejudice if a breach is to afford a basis for relief: George v. Secretary of State for the Environment (1979) P&CR 609 (cf. also s.288(5)(b) of the 1990 Act). The failure to seek specific comments on TN7 and/or the MVA report did not cause substantial prejudice to Elmbridge or RLG because they had had a reasonable opportunity to put forward a contrary case and had done so in different fora; and because the relevant case had in any event been put forward fully by others in those fora. There was in substance no want of fairness.

64. Running through those submissions is the contention that Elmbridge and RLG had a fair chance to make whatever representations they wished on TN7 and that any suggestion on their part that they held back, in reliance on the assurance contained in GOSE's letters of 6 August and 10 September 1997, from calling evidence and cross-examining witnesses at subsequent inquiries is disingenuous and incredible. The natural inference from what occurred is that they sought to limit the scope of the argument on New Barn Farm at subsequent inquiries, and limited their own participation accordingly, pursuant to a tactical decision to protect so far as possible the favourable outcome which they had achieved in the Secretary of State's interim decision letter on New Barn Farm. In any event, it is submitted, the issues were properly explored since the Highways Agency witness was cross-examined, and evidence was called, by Caswell (who were represented by the same experts as RLG) to challenge TN7; and neither Elmbridge nor RLG could have made any material addition to the process.

65. As to the specific issue of breach of legitimate expectation, Mr Sales submits first that the assurance of an opportunity to make representations only took effect "if it subsequently becomes clear that the further evidence supplied by the Agency will affect the decision on the appeal". TN7 did not affect the decision on the appeal, but served merely to confirm the highways conclusions which had been reached by the New Barn Farm inspector. The assurance did not cover the later MVA report or any evidence from the Highways Agency other than TN7, so that the case in relation to that material has to be assessed on general grounds of natural justice. Nor did the assurance extend to re-opening the inquiry or putting in further evidence.

66. Mr Sales further submits, by reference to observations in R v. North and East Devon Health Authority, ex parte Coughlan [2000] 2 WLR 622, esp. paras 79-81, that the basis of legitimate expectation is fairness of treatment and the avoidance of abuse of power. There was no unfairness or abuse of power here. In particular: (1) There was no clear and unambiguous representation that evidence that served to confirm the view of the inspector would be taken to "affect" the decision on appeal. (2) Alternatively, Elmbridge and RLG had and took the opportunity to respond to TN7, so that the expectation was satisfied in substance. (3) Such expectation as was based on the letter of 6 August 1997 could no longer be regarded as legitimate by July 1999, having regard to the further inquiries etc. in the interim. (4) There was no justified reliance on the letter of 6 August 1997. Elmbridge and RLG proceeded to put forward their views on TN7 in any event, by means of the report of Elmbridge's consultants and their joint participation in subsequent inquiries. The opportunity to comment both orally and in writing at subsequent inquiries went beyond what had been assured by GOSE, which related to written representations only. Examination of the relevant paragraphs in the claim form shows that none of the matters raised relates in truth to TN7. This is borne out by an examination of their evidence in these proceedings, which fails to identify what different attack would have been made on TN7. (5) The fact that a reasonable opportunity to present criticisms of TN7 was in practice afforded and taken means that there has been no substantial prejudice. In any event it is not a prejudice to be deprived of the further opportunity to persuade a decision-maker on points already fully covered. There has been a complete failure to show that there is a serious point on TN7 which has not already been put.

67. Mr Gilbart adopts the submissions for the Secretary of State and adds points of detail in relation to the history of the inquiries and the relevant correspondence. He submits that, to the extent that Elmbridge/RLG relied on avoidance of cost as a reason for not involving themselves more fully in inquiries after New Barn Farm no weight should be attached to such a consideration: Swayfields' own experience shows that it does not need a lot of time to make a good case, and there is no suggestion in evidence that Elmbridge could not afford the costs of appropriate representation. In any event he submits that Elmbridge/RLG, as well as Totalfina/Hadmere and Caswell, had and took the opportunity to attack the Highways Agency's methodology, New Barn Farm being put in issue at the later inquiries. The commonality of interest is illustrated by the fact the expert instructed throughout by RLG was a member of the same firm, Peter Finlayson Associates, as the expert used by Caswell, the promoter of Elk Meadows. To the extent that Elmbridge/RLG refrained from doing more, that was a matter of informed choice.

68. Elmbridge/RLG also had ample opportunity and incentive to make representations to the Secretary of State in the context of the New Barn Farm appeal at various stages. They knew from the correspondence (see in particular the letter from GOSE dated 5 February 1997) that the Secretary of State might take a composite view in the light of the various inspectors' reports. As the other inspectors came out with their recommendations, it must have been overwhelmingly obvious that the prospect of New Barn Farm being granted permission was growing all the time. Elmbridge/RLG could and should have written to the Secretary of State with any additional material they wished to put forward.

69. As to legitimate expectation, Mr Gilbart again substantially adopts Mr Sales's submissions. He submits that the only legitimate expecation of Elmbridge/RLG was that they should have the chance to put forward their case on the Highways Agency methodology. They took the opportunity to comment and had other opportunities to do so.

70. I take as my starting point the assurance given by GOSE to Elmbridge and RLG in the letter of 6 August 1997, as reiterated in the interim decision letter of 10 September 1997 on New Barn Farm. That assurance was clear and unambiguous, and was apt in my judgment to give rise to a legitimate expectation of the kind referred to in cases such as R v. Jockey Club, ex p. RAM Racecourses [1993] 2 All ER 225. I accept that the assurance was limited in scope, contemplating no more than written representations by Elmbridge and RLG (i.e. it did not extend to the re-opening of the New Barn Farm inquiry). I consider it unduly narrow, however, to read the assurance as encompassing only TN7, as being the limit of "the further evidence" to which it referred. To my mind such an assurance would reasonably be taken by the recipient to be wider in scope and to cover not just existing evidence but also any further evidence that the Highways Agency might supply in respect of the New Barn Farm highway issues. If I am wrong on that and the legitimate expectation applied only to TN7, then in my view the existence of the assurance must nonetheless have a bearing on the broader question of procedural fairness considered below.

71. On the wording of the assurance, did the evidence of the Highways Agency, whether in TN7 or in the later material, "affect" the final decision on New Barn Farm? In a sense it is artificial to examine TN7 in isolation from the evidence at the intervening inquiries and the Highways Agency's letter of 30 July 1999 and MVA report. To the extent that this is a useful exercise, however, I consider that the influence of TN7 did continue to be felt at the time of the final decision. It formed part of the evidence put forward by the Highways Agency in support of its view on New Barn Farm. It was part of the material taken into account by the Secretary of State in reaching his decision. It was encompassed within the material referred to in the decision letter, when the letter stated that there was "nothing in the post-inquiry representations or subsequent advice from the Highways Agency" to cause the Secretary of State to disagree with the inspector's conclusion. The fact that it helped merely to confirm the conclusion reached by the inspector does not mean that it did not "affect" the Secretary of State's decision. Expressions used in correspondence of this kind are not to be construed narrowly but are to be given their ordinary and natural meaning. To my mind the evidence "affected" the decision by contributing towards the Secretary of State's view that he should accept the inspector's original conclusion on the highways issue. The very fact that he thought it appropriate to state in the decision letter that there was nothing in the subsequent advice of the Highways Agency to cause him to disagree with that conclusion is a good indication that such advice, including TN7, did "affect" the decision.

72. What I have said about TN7 affecting the decision applies a fortiori to the subsequent Highways Agency evidence. The whole background to the seeking of the letter of 30 July 1999 with its enclosed MVA report, and the way in which that material was taken into account in the decision, are consistent only with the view that the later evidence affected the decision.

73. Whether or not reliance to one's detriment is strictly necessary for the purpose of establishing a breach of legitimate expectation, I think it important, in determining whether any substantial unfairness existed in this case, to examine whether, by reason of the assurance, Elmbridge and RLG refrained from making representations or taking other action that they would otherwise have made or taken.

74. On that point Elmbridge starts from a position of some difficulty, in that it submitted its consultants' report on TN7 to GOSE on 12 September 1997 without any suggestion that this was only a partial or limited response. On the other hand, the evidence of Elmbridge before this court is that the submission of the consultants' report was not regarded as the taking of the opportunity to respond in detail; and, had it not been for the assurance, the response would have been different and Elmbridge's participation at subsequent inquiries would have been different. The evidence for RLG is similar, and in its case there was no equivalent of the consultants' report submitted by Elmbridge.

75. I am not prepared to dismiss Elmbridge's and RLG's evidence as disingenuous or to accept the Secretary of State's contention that their limited participation in later inquiries was the result of a tactical decision unconnected with the assurance that had been given to them. Apart from the fact that their evidence has not been challenged by cross-examination, it is supported by the contemporaneous material. I have quoted passages from their counsel's submissions at the Simplemarsh Farm, Elk Meadows and Warren Farm inquiries. It is plain from those passages that their limited participation was related directly to the assurance received and the belief that they would "if necessary" be given a further opportunity to deal with the highway issues at New Barn Farm in its own right. It is understandable that they did not commit themselves to greater, and potentially unnecessary, work and expense (a consideration mentioned by GOSE in the letter of 6 August 1997 containing the assurance), irrespective of how much additional work and expense might have been required and of whether they could have afforded it. I also reject the submission that RLG's case is undermined by the fact that its expert advisor and the expert used by Caswell at the Elk Meadows inquiry were members of the same firm. Each expert was representing the interests of his particular client; and even if there was no significant conflict of interest, the clients' interests were not in my view identical.

76. In my judgment it ought to have been clear to GOSE, following receipt of the various inspectors' reports and when considering the making of a favourable decision in respect of New Barn Farm, that Elmbridge and RLG would - or at the very least might - wish to take up the opportunity to make further representations on the Highways Agency's evidence in accordance with the earlier assurance. Yet not only did GOSE fail to give them that opportunity; it sought and received additional evidence from the Highways Agency instead. In so far as it proceeded on the basis that the points had been fully addressed at other inquiries and no further opportunity was required, it misunderstood or overlooked what actually happened at those inquiries and, in particular, the position expressly adopted by Elmbridge and RLG at those inquiries. In any event, even if it really thought that there was nothing else to be said by Elmbridge and RLG, the correct course in the light of the earlier assurance would have been to check with Elmbridge and RLG whether that was really the case, rather than to look only to the Highways Agency for confirmation of its position.

77. There remains the question whether in practice Elmbridge and RLG would have had anything useful to say - i.e. something that was different from what had already been said by them and others, and that was capable of affecting the decision. To examine that question it is necessary to look in greater detail at the technical highway issues. That is dealt with more conveniently below in a separate section. What emerges from that section is that, having considered the detailed debate conducted before me in evidence and submissions, I have come to the conclusion that Elmbridge and RLG did have something new to say which might have affected the decision. I do not need to decide that it would have affected the decision, and the actual resolution of the expert conflict is not the function of this court. It suffices that the promised opportunity to make representations was an opportunity that mattered.

78. For those reasons I conclude that the Secretary of State reached the New Barn Farm decision in breach of legitimate expectation and that the breach cannot be dismissed as insubstantial. It is a procedural failing sufficient to vitiate the decision and justify the grant of relief to quash the decision.

79. I should nevertheless turn to consider the broader question of procedural fairness. Everything said already in relation to legitimate expectation, which is here an aspect of procedural fairness, feeds into the analysis but does not need to be repeated. Even if the specific doctrine of legitimate expectation is not engaged, I am satisfied first that in the circumstances Elmbridge and RLG were entitled to a reasonable opportunity to make representations on TN7 but were not given that opportunity, in that they were led to understand that a specific opportunity would be given later if necessary and such an opportunity was not in fact given later; and that when account is taken of the Highways Agency letter of 30 July 1999 and the MVA report, then the case on procedural unfairness becomes stronger still.

80. GOSE was aware that the highways issue at New Barn Farm was the subject of much contention. Elmbridge and RLG had raised the impact of the NAOMI figures on the traffic flows used at the New Barn Farm inquiry. They had made clear that they challenged TN7. The inspectors at the later inquiries had expressed substantial reservations as to the reaching of conclusions on that issue on the limited evidence before them. The Warren Farm inspector had gone so far as to note that the new evidence suggested that there would be a need for an additional lane to accommodate weaving at New Barn Farm. Ms Gerry was sufficiently concerned as to the implications of the highway issues to ask the Highways Agency to confirm its position. She was evidently far from sure that the points had already been resolved against Elmbridge/RLG. In those circumstances, to rely on the Highways Agency's response, even though it was expressed to confirm the Agency's position, without giving Elmbridge/RLG a reasonable opportunity to comment on it was in my judgment unfair.

81. In saying that, I have taken account of GOSE's concern not to lengthen an already very long process, and the way in which GOSE was looking at matters. I give weight to the decision-maker's own view of what was fair, in relation to the assessment of a complex technical issue. I understand why GOSE proceeded as it did. But in my judgment what was done took insufficient account of the fact that Elmbridge and RLG had not yet been given the promised opportunity to make full representations even on TN7, and seems to have overlooked the possibility that they might have substantial criticisms to make of the new material, including the MVA report on which the Highways Agency based its confirmation of the view that a fifth lane was not necessary.

82. It cannot be said that Elmbridge and RLG had already had the opportunity to make representations on the MVA report and the letter of 30 July 1999. In so far as it is argued that the report added nothing to TN7, that cannot help the Secretary of State, since I have already held that Elmbridge and RLG were denied a reasonable opportunity to make representations on TN7. In any event they were entitled to say whether they accepted that the MVA report added nothing to TN7 and whether they had any further points to make on it.

83. Here too, of course, it is necessary to consider whether Elmbridge and RLG would have had anything new to say. As I have already indicated in the context of breach of legitimate expectation, I think that they did and that it might have made a difference. The loss of the chance to put forward their case, and the possibility that the decision might have been affected by that case, are sufficient to justify the conclusion that there has been a substantial breach of natural justice.

84. On this ground too, therefore, I consider that there was a procedural failing which vitiates the decision in respect of New Barn Farm and justifies the quashing of that decision.

85. Although the case advanced by Mr Smith for Totalfina/Hadmere in relation to breach of natural justice overlaps very considerably with that of Elmbridge/RLG, I have thought it better to separate the two for the purposes of exposition. I shall refer simply to Totalfina, since reference to Hadmere adds nothing to the argument.

86. Totalfina does not have the benefit of the assurance given to Elmbridge/RLG in 1997, but still complains of GOSE's failure to give it an opportunity to make representations on the Highways Agency evidence obtained in 1999 in relation to New Barn Farm. Mr Smith submits that if there was a breach of natural justice in relation to New Barn Farm, then the other challenged decisions in respect of MSAs on the M25, i.e. Warren Farm and Simplemarsh Farm, should be quashed as well, since the Secretary of State based all his decisions on the comparative selection of New Barn Farm as the appropriate site.

87. At the Warren Farm inquiry, Totalfina had sought to demonstrate that an MSA at New Barn Farm would necessitate a fifth lane. For that purpose they had submitted document TOT22, as Elmbridge had submitted EBC2, which addressed the findings in the Highways Agency's documents TN7 and HA4. The Warren Farm inspector took the view that that inquiry was not the appropriate forum for determining such matters. It is unlikely that he would have allowed a Highways Agency witness to be called for cross-examination. Totalfina had not had the opportunity to cross-examine the Highways Agency witness at Elk Meadows, where the Agency and Totalfina were effectively on the same side in attacking the promoter's case. The reality was that the respective positions of the Highways Agency and Totalfina had not been fully dealt with at any of the inquiries. In letters sent to GOSE in the course of 1999, Totalfina had expressed continuing concern about the highways issues (though I would observe that NBF was touched on only briefly and the main emphasis of the second letter, dated 21 June 1999, was on seeking to persuade the Secretary of State to establish a procedure for evaluating both the highways evidence and the Green Belt issues raised at the various inquiries).

88. Against that background, it is submitted, it was unfair to obtain and accept evidence from the Highways Agency - in particular the MVA report - that purported to contradict the conclusions in TOT22 and EBC2, without giving Totalfina an opportunity to comment on the new evidence. This was a principal controversial issue. It was wholly wrong to write in confidence to one witness, asking him whether, having read the contradictory evidence, he still adhered to his original position; and upon receiving confirmation that he did, to accept what he said and to decide on the basis of it, without having heard his evidence tested or even giving the other parties an opportunity to comment on it. Mr Smith submits that Ms Gerry's comments about the nature of the further material from the Highways Agency display a total failure to grasp its evidential significance and the requirements of fairness in respect of it and with regard to the contentious issue to which it was addressed.

89. It is further submitted that if the opportunity to make representations had been given, then Totalfina's expert, Mr Jones, would have sought to challenge the Highways Agency evidence and would have provided expert evidence to rebut it. The court has before it an affidavit detailing his criticisms of the material, to which I make further reference in the section on technical highway issues. There is, submits Mr Smith, sufficient prejudice to justify the grant of relief to Totalfina if it satisfies the court there is a possibility that Mr Jones's evidence might have persuaded the inspector or the Secretary of State.

90. Mr Sales for the Secretary of State makes two broad points in relation to Totalfina's case on this issue. First he points out that Totalfina has not challenged the New Barn Farm decision and is restricted to arguing that a breach of natural justice in relation to the highways evidence regarding New Barn Farm vitiates the decisions on Simplemarsh Farm and Warren Farm. But the immediate difficulty is that Simplemarsh Farm and Warren Farm were considered by the Secretary of State, in agreement with the respective inspectors, to be objectionable on entirely independent grounds (deficiencies in access arrangements in the one case, the fact that it was not appropriately located to serve as a single site in the other, and the rejection of the two-site strategy which underpinned the two applications). Any breach of natural justice in relation to New Barn Farm could not therefore have prejudiced the interests of Totalfina.

91. Secondly, Mr Sales points out that Totalfina openly admits that it expected the highways merits of New Barn Farm to be debated at subsequent inquiries, and participated in those inquiries for that reason. In particular it attended at the Elk Meadows inquiry and participated in the debate surrounding HA4. The rules of natural justice did not require that the MVA report be circulated to Totalfina prior to the decision letters, since the methodology employed had already been fully debated and the data used derived from undisputed sources or had already been endorsed by the inspectors. Moreover nothing in the MVA report placed Simplemarsh Farm or Warren Farm in a new light so far as highways issues were concerned. Mr Jones's evidence seeks to re-argue points already determined against him in one or more inquiries.

92. The case advanced on behalf of the Secretary of State is adopted by Mr Gilbart for Swayfields. It is adopted with some further elaboration by Mr Druce for Runnymede and Mr Warren for Buckinghamshire. Those local authorities had, of course, appeared at the original inquiries on Simplemarsh Farm and Warren Farm respectively, in opposition to the proposed developments.

93. Mr Druce submits that Totalfina's case on breach of natural justice demonstrably fails on the grounds that the 1999 material was not new evidence and in any event the applicants have failed to show that substantial prejudice has been caused. To the extent that there were differences between the MVA report in 1999 and earlier Highways Agency material, those differences were immaterial (and in some cases favourable to the applicants). Mr Druce also supplements the detailed points made by Mr Sales on the technical issues (see separate section).

94. Mr Warren submits that there is no basis on natural justice grounds for a challenge to the Warren Farm decision, since there was nothing in the MVA report or Highways Agency letter of 30 August 1999 that affected the assessment of the highway merits of Warren Farm. So far as concerns the highway merits of New Barn Farm, Mr Warren covers much the same ground as Mr Sales.

95. Counsel for both local authorities point out, in common with Mr Sales, that Totalfina has not challenged the New Barn Farm decision directly. Each submits that even if the New Barn Farm decision falls to be quashed by reason of deficiencies affecting that decision, it should not lead to the quashing of the decision to refuse permission in respect of Simplemarsh Farm or Warren Farm, as the case may be. That is because each of those was rejected for site-specific reasons and any redetermination would plainly result in the same decision. The point on access was considered to be an overriding objection in relation to Simplemarsh Farm, and in the case of Warren Farm the site was not considered to meet need in an appropriate way and was found to be the most objectionable on Green Belt grounds.

96. I can set out my conclusions on this issue relatively briefly, since much of the groundwork has already been laid in considering the corresponding submissions of Elmbridge/RLG. The case as to procedural unfairness is not as strong in relation to Totalfina as in relation to Elmbridge and RLG, in that Totalfina had not been given an assurance by GOSE and its involvement in subsequent inquiries had therefore not been affected by any such assurance. Moreover Totalfina was less directly involved in the highway issues affecting New Barn Farm. Nevertheless the failure to invite representations on the Highways Agency letter of 30 July 1999 and the MVA report is something in respect of which Totalfina's submissions do in my view have some force. I consider that Totalfina should as a matter of fairness have had an opportunity to make representations on that material. Albeit expressed as confirmatory of the Highways Agency's previous position, it was additional evidence in a contentious area in respect of which Totalfina had advanced a case of its own at some of the inquiries. It seems to me that there was real unfairness in receiving evidence of this kind without giving the parties, including Totalfina as well as Elmbridge/RLG, an opportunity to comment.

97. Whether Totalfina would have had anything useful to say is again a matter considered in the section on technical highways issues. As appears in that section, I consider Totalfina to be in a significantly weaker position than Elmbridge/RLG, but I think that Totalfina, too, did have something new to say and I am not satisfied that it could have made no difference. The loss of the chance to put forward its case, and the possibility that the decision might have been affected by it, are again sufficient to justify the conclusion that there has been a substantial breach of natural justice.

98. As to the respondents' case that Simplemarsh Farm and Warren Farm were decided against Totalfina on altogether separate grounds, the fact remains that the Secretary of State would have had to reconsider everything if a fifth lane was required at New Barn Farm, since that would effectively rule out New Barn Farm as an appropriate site. Thus unfairness in relation to the highways material relating to New Barn Farm is something on which Totalfina can properly rely.

99. The arguments before me have encompassed a large number of technical points concerning highways matters, which have been canvassed at length both in the evidence and in written and oral submissions. The material is not readily digestible, nor does it lend itself to easy exposition. But I shall attempt a summary of the rival contentions on the main areas of dispute before venturing to express and explain my conclusions on this topic (though I have already referred to the overall outcome of them). Sub-headings (i) to (vi) relate to points raised by Elmbridge/RLG, sub-heading (vii) covers points raised by Totalfina.

100. One of the issues said to have arisen at the New Barn Farm inquiry was whether the appropriate standard for traffic flows was the standard applicable to rural roads or that applicable to urban roads. Mr Arnold, of the Highways Agency, says in his witness statement that the Agency initially agreed an approach which involved in effect the urban standard, but during the course of the inquiry it was implicitly accepted that this was wrong (the correct approach being adopted in a letter of 24 September 1996 from the Agency to Elmbridge's traffic expert, Mr Rudd, during the course of the inquiry). Elmbridge/RLG complain that there was no admission of the error by the Agency during the inquiry and the inspector proceeded on the basis that the Agency supported the use of the urban standard (see e.g. para 12.42 of his report).

101. Mr Sales's principal riposte is that this is not a complaint about material taken into account by the Secretary of State upon which Elmbridge/RLG had no opportunity to comment, but a point about the approach adopted at the New Barn Farm inquiry; and it arises not out of the alleged new evidence but out of Mr Arnold's witness statement in these proceedings. A number of further submissions are also made on the substance of the issue, to the effect that there was no error of approach by the Highways Agency at the New Barn Farm inquiry.

102. Mr Gilbart reinforces those submissions with additional detail. He says that the calculation of weaving widths at the inquiry was carried out on a rural basis and that the relevant issue at the inquiry was not about that but about the effect of using figures for the 50th highest hour rather than the average peak hour. That issue was fully examined at the inquiry, with the inspector accepting most of the criticisms made by Swayfields' expert of the approach put forward by the Elmbridge/RLG witness, Mr Rudd. The inspector also accepted that a sensitivity test addressed to the basis advanced by Mr Rudd showed that the need for a fifth lane was marginal.

103. In reply, Mr Porten has picked up on these points, submitting that at New Barn Farm the material competing contentions were, on the one hand, the use of a rural standard taking 50th highest hour flows and a particular data source (Mr Rudd) and, on the other hand, the use of an urban standard taking average peak flows and the WS Atkins model (Swayfields' expert). Mr Rudd said that 50th highest hour would be applicable if the relevant section were considered to be a rural road, and average peak flows if it were considered urban. The Highways Agency agreed an urban approach to modelling; and although that is now accepted to have been wrong, there was no obvious correction of the error at the time and Mr Rudd's credibility was impugned by Swayfields at the inquiry on the basis that his approach was wrong.

104. The complaint made here by Elmbridge/RLG is that one set of turn-in rates was used at the New Barn Farm inquiry, but higher turn-in rates were then adopted for Warren Farm (which was directly comparable in this respect); yet the MVA report and Highways Agency letter relied on the original lower figures rather than the higher Warren Farm figures or further revisions in the light of more recent information. Such an approach, it is submitted, was irrational and unreasoned and denied a comparison of sites on a like for like basis; the more so, given that the MVA report used updated figures for Woodlands Park (applying the same turn-in rates as for Elk Meadows). There had been no debate on turn-in rates at the New Barn Farm inquiry, since there was no basis for challenge at the time to the figures agreed between the Highways Agency and Swayfields. It was the subsequent emergence of different figures that called for further examination of the position. Mr Porten submits that the use of the higher turn-in rates would necessitate the provision of a fifth lane at New Barn Farm (an argument which links with certain of the other issues considered below).

105. Mr Sales makes the point that the turn-in rates used by MVA were those agreed at the New Barn Farm inquiry and adopted by the inspector. The Secretary of State's case, as already indicated, is that the MVA report is an updating of HA4, which was submitted to the Elk Meadows inquiry and adopted the turn-in rates previously agreed at the New Barn Farm inquiry. There was a debate at the Elk Meadows inquiry as to whether those turn-in rates should still be used. Elmbridge/RLG were represented at the inquiry and had the opportunity of contributing to that debate; and their failure to do so cannot be attributed to the GOSE assurance, since that related to TN7 which referred only to measurement of traffic flows by competing traffic models and said nothing about turn-in rates. Elmbridge/RLG did present submissions and written evidence in the form of EBC2 at the Warren Farm inquiry, criticising the approach to turn-in rates adopted by the Highways Agency at Elk Meadows. Thus a tactical decision was taken to criticise the Agency on the issue at an inquiry where the Agency did not appear (Warren Farm) rather than at an inquiry where it did appear (Elk Meadows). Whatever the motivation for that decision, it cannot be said that the MVA report contained a new approach to turn-in rates which Elmbridge/RLG had no reasonable opportunity to comment on. As to the argument on irrationality, issue is taken in the evidence with the assertion by the applicants' expert, Mr Rudd, that Warren Farm is comparable to New Barn Farm in terms of turn-in rates.

106. Mr Gilbart adds that there was no suggestion at all by Mr Rudd at the New Barn Farm inquiry that higher turn-in rates should be used, whether a one-site or two-site solution were adopted. He submits that it is not open to Elmbridge/RLG to claim now that their witness was wrong; and since their case was that there was insufficient need for an MSA at New Barn Farm under any scenario, it is not logical for them to argue that the assumed turn-in rates were too low. In any event it does not follow that turn-in rates at other sites would be the same as for New Barn Farm. Since Woodlands Park and Elk Meadows face each other across the M25, it is not surprising that the same turn-in rates were used at those two inquiries.

107. Elmbridge/RLG assert that the Highways Agency has been inconsistent in its approach to testing capacity on the M25. There are two tests involved. The first, referred to as "D= 1800", is based on 1800 vehicles per hour per lane; the second, referred to as "D=2100", is based on the congestion threshold figure of 2100 vehicles per hour per lane. At the Elk Meadows inquiry, the Highways Agency case was that a weaving situation would be unsatisfactory if the D=1800 test produced a result greater than 4.5 lanes; and that on the D=2100 test it would be unsatisfactory to have a weaving requirement greater than the number of lanes available. It is said that the tests were propounded as alternatives, as can be seen from what was said at the Woodlands Park inquiry. On that basis the figures given in the MVA report (which uses both tests without guidance as to their proper application or any conclusion as to the number of lanes required at New Barn Farm) show that a fifth lane is in fact required at New Barn Farm, since the D=1800 test produces results greater than 4.5 lanes. Mr Arnold's witness statement now propounds a new and inconsistent approach, stating in essence that the results of the D=1800 test can be rounded down provided that application of the D=2100 test does not produce a result in excess of the number of lanes available. These matters were not fully investigated either at Elk Meadows (where the Highways Agency put in HA4) or at any other inquiry.

108. Mr Sales submits that what appears in Mr Arnold's witness statement is not a new approach at all. Examination of the figures in HA4 shows that the same approach was adopted at the Elk Meadows inquiry, in that the Highways Agency's position that a fifth lane was not required at Elk Meadows must have been the result of rounding down, on the basis of the D=2100 test set out by Mr Arnold, the figures of 4.56 and 4.66 produced by the D=1800 test. Again, HA4 was extensively debated at that inquiry and Elmbridge/RLG had the opportunity to participate in that debate and to raise with the inspector the argument that the Highways Agency's own approach required the acceptance of a fifth lane at New Barn Farm. They did in fact address arguments on D=1800 and D=2100 both at Elk Meadows and at Warren Farm. Their decision not to make more extensive use of their opportunity to challenge the Highways Agency's approach cannot be explained by any assurance from GOSE since TN7, the subject of the assurance, did not touch upon this issue. Nor can they have been taken by surprise when the Highways Agency in its advice to the Secretary of State adopted the D=2100 test as determinative.

109. Mr Sales further submits that the contention that the MVA report discloses that a fifth lane is required at New Barn Farm is premised upon the erroneous view that the result should be rounded up if the D=1800 test produces a result greater than 4.5 lanes. That was not the tried and tested approach of the Highways Agency, as HA4 shows. The D=2100 figures in the MVA report, which differ only very slightly from those in HA4, do not disclose a need for a fifth lane.

110. Mr Gilbart adds, if I have understood him correctly, that the worst-case figures shown in the MVA report on a D=1800 basis are not materially different from figures produced by Swayfields' expert at the New Barn Farm inquiry when, notwithstanding his reservations about the 50th highest hour approach put forward by Elmbridge/RLG, he carried out a sensitivity test on that basis. Mr Druce observes that the figures in the MVA report for D=1800 and for D=2100 in respect of New Barn Farm were virtually identical to those in HA4 and that whichever document one uses the worst case assessment using D=2100 figure shows a requirement of less than four lanes.

111. The issue of flow capping relates to the reduction of traffic flows on congested motorway links, and those adjacent to them, to take account of the maximum effective capacity of the road link. The Elmbridge/RLG case is that the MVA report set out greater detail on the issue than had been contained in TN7. The detail was new and contentious; and it is subjected to detailed criticism by Mr Rudd in his witness statement. Combining this argument with that on turn-in rates is said to demonstrate the need for a fifth lane at New Barn Farm. This is a further issue on which, it is submitted, the failure to give an opportunity to make representations at the time gave rise to substantial prejudice.

112. Mr Sales, supported by Mr Gilbart, points to the fact that the capping of flows at the congestion threshold had been the subject of TN7, to which Elmbridge had responded (its response being in the form of a report by Mr Rudd); and the same material was also presented to the Elk Meadows inquiry, where the approach adopted in TN7 was extensively challenged. Further, the issue now raised concerns a tiny difference (namely the alleged use of the figure of 8400 rather than 8438 vehicles during the morning peak period) that could not have had any material effect upon the results of the calculations. In any event a close examination of the calculations shows that MVA did in fact use the 8438 figure and that the calculations did therefore reflect the approach in TN7. Mr Gilbart further submits that the principle of capping was also raised at the New Barn Farm inquiry, as indicated by a passage in the inspector's report referring to "network constraints".

113. In reply Mr Porten observes that the purpose for which TN7 was produced was to address criticisms that the flows used to assess the New Barn Farm proposal were unrealistically low having regard to the latest NAOMI model. TN7 compared the WS Atkins flows (as used at the New Barn Farm inquiry) with unfactored NAOMI flows on the basis that congestion would have the effect of reducing 50th highest hour flows to the level of the unfactored flows. There is no reference to manual adjustment of NAOMI output. The 1999 MVA report did provide more detailed information about what had been done.

114. Other criticisms made by Elmbridge/RLG are that it used both urban and rural standards without any guidance as to which was to be applied, it also used both the D=1800 and the D=2100 tests without guidance on how they ought properly to be used, and in any event its manner of presentation concealed from the Secretary of State the fact that it was raising new issues and that to interpret it as not providing evidence of the need for a fifth lane flew in the face of the cases run by the Highways Agency at two of the inquiries, namely Woodlands Park and Elk Meadows.

115. Those points are really a reflection of issues already covered above. Mr Sales, supported by Mr Gilbart, submits that no objection can be made of the fact that the MVA report was comprehensive in providing figures on the basis of urban as well as rural standards: there is no suggestion that the Highways Agency or the Secretary of State actually took account of the wrong figures. Nor was the Highways Agency deceived by the D=1800 and D=2100 tests, since it adopted the same approach to interpreting the calculations as it had done at Elk Meadows; and the advice to the Secretary of State was consistent with that approach.

116. The government's MSA policy statement issued in July 1998 states that developers will be required to apply the relevant Highways Agency standards in the design of MSA accesses and internal roads. The relevant standards are contained in a document referred to as TD22/92. The point now made by Elmbridge/RLG is that the eastbound merge slip road as shown on the application drawings for New Barn Farm has an internal radius well below the prescribed standard. The Highways Agency did not draw this to the attention of the Secretary of State in the letter of 30 July 1999. Had Elmbridge/RLG been given the opportunity to make further representations before the final decision was taken, they would have made representations on this point.

117. It is not accepted by the Secretary of State that the standards in TD22/92 are applicable to the slip road. But the main point made by Mr Sales is that this is not a natural justice point at all. It does not arise out of TN7 or the Highways Agency letter of 30 July 1999 or enclosed MVA report. It is an entirely separate matter which Elmbridge/RLG could have drawn to the attention of the Secretary of State at any time in post-inquiry correspondence had it been of concern to them. Mr Gilbart likewise stresses that this is an entirely new point from any made before.

118. The affidavit of Totalfina's expert, Mr Jones, takes issue with the MVA report in a number of respects. First, he asserts that there has been no, or no correct, comparison between the capacity of the relevant part of the M25 without an MSA and its capacity with the MSA in question. The response for the Secretary of State is that the comparison has been carried out in accordance with HA4 which was tested at the Elk Meadows inquiry in which Mr Jones and his clients participated: the report contained no new material in this respect.

119. Secondly, there are several complaints about the way in which the MVA report deals with Simplemarsh Farm: for example, by ignoring the fact that Simplemarsh Farm (being at a junction) does not create an additional weave section on the M25 whereas the rival proposals do, it materially misrepresents the effect of Simplemarsh Farm on M25 capacity; and it applies the wrong standards for traffic flow. Mr Sales observes that the relevance of these points is unclear, since it was made clear before me in argument for Totalfina that the focus of Totalfina's natural justice point was the treatment of New Barn Farm in the MVA report. In any event Simplemarsh Farm was rejected not on grounds of over-capacity caused by weaving but because its access arrangements constituted an overriding objection, so that if (which is not accepted) there were any problems with MVA's analysis of Simplemarsh Farm, they had no bearing on the decision.

120. Mr Jones states that the congestion reference flow for non-weave sections of a four lane motorway is 8400 vehicles an hour, and for weave sections it is 7600 vehicles an hour, and that the application of a non-weave figure to a weave section results in the MVA report incorrectly stating the number of lanes required. Mr Sales describes this as an idiosyncratic view, possibly based upon a confusion. All other experts are agreed that the correct figure per lane is 2100, which was the figure adopted in HA4 at the Elk Meadows inquiry (which Mr Jones could have challenged); and it was in no way new in MVA's 1999 report.

121. Mr Jones makes comments about the way in which the MVA report deals with capacity constraints - a topic which, says Mr Sales, was the substance of TN7 and extensively debated at the Simplemarsh Farm, Elk Meadows and Warren Farm inquiries, and not new in the MVA report.

122. Mr Jones concludes that on the basis of government policy and the material in the MVA report, a fifth lane would be required at New Barn Farm. To a large extent that covers ground already traversed in connection with the Elmbridge/RLG case. Mr Sales again submits that what is raised is not something new in the MVA report and does not warrant the conclusion Mr Jones seeks to draw.

123. I have concentrated above on Mr Sales's response to Totalfina on the technical issues. I should make clear that Mr Gilbart adopts them and that his submissions add further details. Mr Druce, for Runnymede, also make a number of submissions on these issues. His focus is that the MVA report in 1999 added nothing material in relation to Simplemarsh Farm and that the absence of opportunity to comment on the report caused Totalfina no prejudice in respect of the case that had been advanced in relation to New Barn Farm. I have taken those various submissions into account but do not think it appropriate to go into further detail.

124. I stress that I have sought only to give a summary of the main issues. I have not mentioned every argument, nor given anything like the detail necessary for a full understanding of the issues raised.

125. I have every sympathy with an early submission by Mr Sales that the Administrative Court is not a suitable forum for the resolution of highly technical disputes of this sort. Where, as here, there is competing evidence from rival experts, it is not part of the function of the court on judicial review or a like application to resolve the dispute between them. The court is concerned with issues of lawfulness, not with the substantive merits of a case. For that purpose in the present case the court has to examine the material in order to see whether the apparent breach of legitimate expectation and/or apparent breach of natural justice identified above amounted to more than technical failings and gave rise to substantial unfairness: in particular, whether there was evidence upon which the parties had not already had a fair opportunity to comment, and whether they had anything new to say on it which might have affected the decision.

126. But in the present case that exercise has involved one party seeking to persuade the court, by reference to that party's own expert evidence and a trawl through a substantial body of technical material, that the opposing party and the opposing party's expert are raising points that lack novelty or substance or are simply wrong or misconceived. Such an exercise comes close to, even if it is not quite the same as, seeking to get the court to resolve on its merits a conflict of expert evidence. It seems to me that where, as is effectively the position here, an expert gives evidence that if he had been given an opportunity to comment he would have had advanced additional points of substance which in his expert opinion lead to important consequences (e.g. as suggesting that a fifth lane would be required at New Barn Farm if the proposed development there went ahead), the court should be disinclined to reject that evidence in an application of this nature unless, on a relatively brief survey of other material, it is satisfied that what the expert says is obviously unsustainable. In practice I have gone somewhat further than that, allowing myself to be drawn into consideration of considerable detail. But I take the view that the ultimate question I should be asking myself is whether what the experts for Elmbridge/RLG and Totalfina are saying is obviously unsustainable. If it is not, and there has been a prima facie breach of the rules of procedural fairness, the right course is to quash the decision and to allow the expert evidence to be evaluated in a more appropriate forum.

127. I have gained the strong impression that the applicants' technical case involves far more in the way of flak than substantial and properly targeted points; and I am concerned that mere technical complexity should not be a cause of a case without substance succeeding. But I am not satisfied that what the experts for Elmbridge/RLG and Totalfina are saying is in all material respects obviously wrong. I am persuaded that there is here a real and serious debate between experts and that there is sufficient to justify the view that the applicants, if given an opportunity to make representations, would have had something new to say which might have affected the decision.

128. I have also borne in mind the concerns expressed by the inspectors on this general area. The various inspectors referred to the deficiencies in the evidence, the absence of cross-examination, etc. Even the Elk Meadows inspector, who heard witnesses and cross-examination (though not, of course, from Elmbridge/RLG), found the evidence insufficient to assess the merits of the evidence presented to the New Barn Farm inquiry. The Warren Farm inspector, albeit not having heard such witnesses and cross-examination, noted that there was new evidence suggesting that a fifth lane would be needed at New Barn Farm. There was no final adjudication on the dispute even as it existed then (i.e. before the Highways Agency letter of 30 July 1999 and MVA report added further material for debate). In my view that history should also cause me to be cautious about rejecting the applicants' expert evidence before me as lacking all substance.

129. Although my general conclusions are determinative, I turn to make brief comments on the individual topics listed above.

130. There is force in Mr Sales's submission that point (i) is not a true natural justice point, having been prompted by something said in the Secretary of State's evidence in these proceedings rather than by the material which the applicants say they should have had an opportunity to make representations on. If the applicants had been given that opportunity, they might not have realised at the time that there was something to be said about the Highways Agency's apparent change of position with regard to urban/rural standards. Nevertheless the points actually made are closely related to the issues properly categorised as natural justice issues, and I am not satisfied that the concerns expressed about that apparent change of position are without substance.

131. The main difficulty about the respondents' submissions on point (ii) is that turn-in rates, although agreed at the time of the New Barn Farm inquiry, became contentious in the light of the use of different rates elsewhere. I do not think that Elmbridge/RLG can be held in the circumstances of this case to the position that they originally agreed. The possibility that later developments might affect earlier positions is one of the features of the case. One then comes back to the fact that Elmbridge/RLG refrained from making out a detailed case at subsequent inquiries in the belief that they would if necessary be given an opportunity to do so in respect of New Barn Farm. I have explained why that approach was not in my view unreasonable and why GOSE knew or ought to have known of it. In that sense Elmbridge/RLG had not had a fair opportunity to put forward their full case on turn-in rates; and it was a matter on which they had points of substance to advance.

132. In my view Mr Sales is probably correct in his submission on issue (iii) that the Highways Agency has been consistent in its approach and that that approach, when applied to the MVA report figures, supports the conclusion that a fifth lane is not required at New Barn Farm. But the Secretary of State's evidence on the point does not seem to me to be clear-cut and this is a good illustration of the difficulties inherent in the court getting drawn into, and reaching conclusions on, the primary material in a relatively complex area. This is the kind of issue that is far better evaluated by an expert. Nevertheless I find that it is an issue on which Elmbridge/RLG had points of substance to advance, although I think that they are probably making too great a meal of it. To the extent that the argument against them is that they had a reasonable opportunity to put these points previously, I have already explained why I do not accept that argument.

133. I doubt whether there is a lot in point (iv), but again it is an issue which depends to some extent on detailed analysis of the technical material and it is not something where I can say that the applicants' case is obviously unsustainable.

135. On point (vi) I accept Mr Sales's submission that it is not a natural justice point at all. It does not arise out of the Highways Agency material, and it is something to which Elmbridge/RLG could have drawn the Secretary of State's attention had they wished to do so.

136. On the various matters raised by Totalfina under (vii), I have had real doubts as to whether Mr Jones's evidence adds anything of substance, at least in so far as it goes beyond matters already covered under points (ii) to (iv). Here too, however, I have concluded that what he says cannot be dismissed as being obviously unsustainable in its entirety.

137. Those conclusions with regard to the technical issues have already been fed into my findings that the Elmbridge/RLG case on breach of legitimate expectation and breach of natural justice and the Totalfina case on breach of natural justice both succeed.

138. All the applicants contend that the Secretary of State acted unlawfully in failing to carry out a proper comparative exercise of the competing proposals. Although the contentions differ and each claimant naturally puts the ultimate focus on the particular site which is the subject of its application, there is sufficient commonality between them to justify considering them together.

139. Mr Porten, for Elmbridge and RLG, puts the submission in terms of perversity. The New Barn Farm inspector took the view that objections to intrusion into the countryside, in particular, were such that permission should be refused if a materially less harmful project could be found. In his decision letter the Secretary of State agreed with the inspector's conclusions concerning the adverse effect of the proposal, but concluded that none of the other potential sites would give rise to less harmful effects than New Barn Farm. The essence of the submission is that there was no procedure in place upon which the requisite comparative exercise could be based, and the resultant conclusion was therefore perverse.

140. Mr Smith draws attention to the observations of the Warren Farm inspector as to the limitations on the comparative exercise that he was able to carry out (report, paragraphs 7.94-7.97). The inspector observed that he was able to address Green Belt impact only to the extent that the evidence put to him allowed, though he was also able to bring to bear his own evaluation from what he saw on his visits to the sites. In the case of four other sites in respect of which evidence had been adduced, the evidence was not as comprehensive nor tested as thoroughly as that relating to Warren Farm, so he was not able to place the same weight on it. He had had the benefit of reading the inspectors' reports, though had not heard the evidence on which they were based. The other inspectors were subject to an additional constraint in relation to Warren Farm, in that it had not been the subject of an inquiry when the other inspectors were considering it; that reduced the weight to be attached to their conclusions on Warren Farm. Other possible sites had been mentioned but he had not seen evidence of their effects on the Green Belt.

141. Similarly, in relation to Simplemarsh Farm, where the inspector's conclusions addressed the issues in the context of whether there were very special circumstances sufficient to justify the grant of planning permission despite substantial harm to the Green Belt. Having referred at paragraph 8.43 of the report to the argument that Green Belt harm would be less in the case of Simplemarsh Farm than in the case of other proposed sites, the inspector stated:

"... that is a conclusion which could only be arrived at after consideration of those effects on the basis of all the evidence advanced for and against those sites. I am not in a position to do that."

The inspector went on to conclude at para 8.56 that in respect of Green Belt impact and other matters New Barn Farm would be less harmful than Simplemarsh Farm - a conclusion for which he is criticised by Mr Smith as being inconsistent with the limitations that the inspector had previously acknowledged.

142. Mr Smith submits that those limitations applied to all the reports: different evidence was being considered by different people, and different subjective assessments were being made (or not made). The Secretary of State ignored such limitations. Yet he was in no better position than any of his inspectors and could not evaluate their subjective judgments. He declined, unreasonably and without giving sufficient reason, to adopt a satisfactory basis for enabling impacts to be compared at inquiry by a single inspector considering the same material in the same way and to the same extent. He proceeded on this flawed basis to accept the inspector's adverse conclusion as to Green Belt impact, namely that Warren Farm as a single site would cause greater overall harm to the Green Belt than any of the four alternatives proposed and that any pairing which included Warren Farm would be more harmful than any other pairing (report, paragraphs 7.111 and 7.130).

143. Mr Smith went on to make more detailed points, though to similar broad effect, concerning the Secretary of State's overall conclusion that none of the alternative sites would do less harm than New Barn Farm, submitting that there was no proper basis for comparison and that the approach adopted led to confusion. He pointed, for example, to the fact that inspectors had concluded that the countryside impact at Simplemarsh Farm would be less than at New Barn Farm, and that the Secretary of State avoided this by relying on a narrow and discrete issue in support of his conclusion that New Barn Farm did less harm overall than Simplemarsh Farm. Mr Smith submitted that a proper balancing exercise in respect of Green Belt impact was particularly important in the context of the one-site/two-site strategy, in that, although two sites might be expected to cause greater harm to the Green Belt, that was not necessarily so.

144. The issue of comparative assessment is the cornerstone of Avalon's case. Mr Elvin's submission in essence is that it was not possible for the Secretary of State properly to compare the proposals without having them considered by a single inspector or adopting some other procedure to ensure that a fair and proper comparison was made. The approach adopted by the Secretary of State was procedurally unfair and/or irrational. Mr Elvin relies on established legal principles and no additional citation of authority is needed.

145. Mr Elvin submits that the issues in respect of Avalon and the other sites were plainly linked. They included the extent of the need for new MSAs and how it could best be met; the extent to which the proposals met the identified need; the extent to which they were contrary to policy and caused harm to other acknowledged interests; and the extent to which such conflict with policy or harm was outweighed by the need. The extent of conflict with the Green Belt and of very special circumstances overriding that conflict was a, if not the, principal important controversial issue. A comparison of the relative impacts on the Green Belt was therefore necessary. Yet there was no overall examination in the Great Hazes decision letter or the other decision letters to establish which of the sites, either individually or as part of a multiple site strategy, would have the least impact on the Green Belt. The Secretary of State thereby failed to have regard to a material consideration.

146. Mr Elvin draws attention to a number of factors as highlighting the comparative nature of the required exercise: e.g. the comparison made by inspectors in the individual decision letters, the cross-representations made by developers of other sites at the various appeals, the provisional decision at New Barn Farm, and the acknowledgment in the Secretary of State's evidence that there were "unique problems" raised by the task of assessing the individual and comparative merits of so many competing sites.

147. The reasons given by the Secretary of State for declining to re-open the inquiries so that highway and Green Belt issues might be considered by one inspector are given in paragraph 8 of the Great Hazes decision letter as follows:

"He takes the view that these matters have been fully aired at the inquiries into the respective proposals and he considers that he is sufficiently informed on these matters to reach decisions on the basis of the evidence available which ... has been made available to all the main parties."

In so far as the evidence in the present proceedings purports to add to those reasons, Mr Elvin submits that such additional reasons should not be taken into account.

148. What Mr Elvin submits is that the reasons given are narrow, and the Secretary of State simply did not have an adequate basis for that comparative exercise in the material before him. It cannot be said that all of the inspectors looked at all of the sites. Some of them are very cautious in their reports about the limited information available and the difficulties of comparative assessment. The Secretary of State was having to look at and seek to reconcile eight individual sets of planning judgments, each with differences of approach. Mr Elvin gave detailed examples of such differences in approach, drawing on the Great Hazes, New Barn Farm, Simplemarsh Farm and Warren Farm reports. The decision letter (and indeed the Secretary of State's evidence) is silent, it is submitted, about how these conflicts were reconciled. There is nothing to show that the differences of approach between the inspectors were appreciated, let alone how they were dealt with. There was no viewing of the sites so as better to understand the inspectors' different views and subjective site-specific judgments. The Secretary of State simply took each assessment at face value.

149. The only way properly to deal with the matter was by a unified approach. Such an approach was possible: there are many examples of single inquiries into multiple applications, or a single inspector or team of inspectors could have been appointed to compare the Green Belt and other landscape issues. This could have been done in good time. The need for a comparative approach was recognised by GOSE at the time of the interim decision letter in respect of New Barn Farm in September 1997 and was echoed in the deferral of the Great Hazes decision in August 1998.

150. Mr Elvin accepts that Avalon did not specifically request the Secretary of State to reopen the inquiry; but he says that Avalon did raise issues concerning a comparative approach (in a letter of 7 May 1999) and that in any event the Secretary of State did make a comparative assessment and the question is whether his approach was fair and reasonable or not. He further submits that it is possible that, if a fair comparative exercise were carried out, the Secretary of State would reach a different decision, which would not necessarily exclude an M4 site such as Great Hazes. Moreover, in view of the history of the matter and the public interest in a correct decision, the court should not be influenced against Avalon's case by considerations of the further delay that a unified approach would now entail.

151. Avalon also raises a specific issue concerning the approach of the Great Hazes inspector to the Green Belt issue. Although he referred to this as being both a free-standing point and one that feeds into the topic considered here, I do not think that it adds materially to the present topic and I shall consider it separately later in this judgment.

152. Mr Sales submits first that the claimants' challenge under this head must be an irrationality challenge rather than one of procedural unfairness. The question is whether there was a rational basis for the Secretary of State's preference for one site over another. Such a challenge cannot succeed.

153. What one finds on analysis, it is submitted, is not an overall comparative assessment of every site on every issue or even on the issue of harm to the Green Belt, as the claimants simplistically suggest, but a series of comparative assessments on particular issues. For example, the Elk Meadows inspector made a comparative assessment of weaving and also compared Woodlands Park and Elk Meadows (sites which overlap); the Warren Farm inspector, having visited the other sites, found that Warren Farm was the most harmful to the Green Belt; the same inspector concluded that Warren Farm was least able to meet the needs of drivers. There was no purported comparison between the M25 sites and the M4 sites: the latter were excluded by the Secretary of State's conclusions that M25 sites should be considered first and that, as a matter of planning judgment, only one site should be permitted and New Barn Farm was suitable.

154. Other sites were ruled out as most harmful as a result of objections on specific issues, without the need to compare all the issues and without an indication that a comparison was made on all the issues. Thus Simplemarsh Farm was ruled out because of the unacceptability of the access arrangements; Warren Farm because it was least able to meet need as a single site and most harmful in Green Belt terms; Woodlands Park and Elk Meadows on grounds of road safety.

155. That approach, submits Mr Sales was plainly not irrational. There was no overall comparison on all issues, but specific comparisons involving judgments between the sites that could properly be made on the material the Secretary of State had before him.

156. As to specific points in relation to the individual claimants, Mr Sales says that it is not clear how the alleged failures in comparison go to the lawfulness of the New Barn Farm decision. The Secretary of State agreed with the inspector on the Green Belt but decided for other reasons that New Barn Farm should be permitted. As to highways issues, the complaint by Elmbridge/RLG is not one which turns on comparative assessment (though there was a comparative analysis of the capacity implications of each proposal) but on whether New Barn Farm does or does not require a fifth lane. As regards Totalfina/Hadmere, Mr Sales submits that a comparative assessment of harm to the Green Belt was not material to the outcome of the Simplemarsh Farm proposal; and that, in so far as it was one of the issues in relation to Warren Farm, the inspector had undertaken a detailed comparative analysis. As regards Avalon, Mr Sales submits that the case advanced is misconceived, since the Secretary of State did not purport to compare Great Hazes or any of the M4 sites with any of the M25 sites. This was the result of his rational and unchallenged decision to consider, first, whether need on the M25 could appropriately be met by an M25 site. Moreover Avalon did not protest at the time that the procedure was irrational; on the contrary, Avalon's letter at [Av 87/88] contemplated that the Secretary of State could properly conduct the exercise on the basis of the various inspectors' reports.

157. As part of his submissions, Mr Gilbart has referred me to the detailed history of the inquiries and pointed out that, in accordance with the approach laid down in Secretary of State for the Environment v. Edwards [1994] 1 PLR 62, each of the inspectors was bound to address comparisons between alternative sites; and all the parties proceeded on that basis. He has also taken me through an examination of the individual inspectors' reports, showing the specific basis upon which, in relation to the inquiries following New Barn Farm, each inspector concluded the site in question was unacceptable and/or more harmful than New Barn Farm. The Secretary of State was in a perfectly good position to take account of the detailed analysis of, and differences of approach by, the different inspectors, and to reach a decision on the basis of the various reports. He gave clear and succinct reasons for his conclusions, both in the individual decision letters and in the common section on the comparisons drawn.

158. As regards the submissions of Totalfina/Hadmere on this issue, Mr Gilbart contends in addition that by the time of the Warren Farm inquiry they had (and took) the chance of making any points they wished on the previous inspectors' reports, which had been disclosed to the parties. The evaluations relating to Warren Farm and Simplemarsh Farm were properly carried out. Both sites had such powerful objections to them that it is inconceivable that permission would ever have been granted for either.

159. Avalon's submissions on this issue, says Mr Gilbart, are entertaining but hopeless. Avalon has to attack the Secretary of State's failure to establish a basis for a full comparative exercise as between the M4 and the M25 sites. That was not a case ever run by Avalon. Examination of the inspector's report on Great Hazes shows that it was put forward as an infill site between Reading on the M4 and whichever of New Barn Farm or Woodlands Park was chosen on the M25, i.e. it was to be a complementary site. The correspondence shows that Avalon accepted that a decision on an M25 site should be taken first. In any event, once the Secretary of State decided that he wanted provision on the M25 and a single site, Avalon was out of the picture; and the Secretary of State's approach to that question was reasoned and rational.

160. Mr Druce, for Runnymede, touches on this issue only to the extent that he deals at some length with the site-specific issues relating to Simplemarsh Farm, submitting amongst other things that there is no conflict in the approaches of the Simplemarsh Farm inspector and the Great Hazes inspector towards the Green Belt issues and, more importantly, that the access objection to Simplemarsh Farm was overriding and was fatal to the proposal on an absolute, not a comparative, basis.

161. Mr Warren, for Buckinghamshire, submits that the first answer to the case advanced on the comparative exercise is that Warren Farm (like Simplemarsh Farm) was rejected on the basis of objections of an overriding nature. The inspector viewed the sites and formed a comparative view, taking into account and weighing critically the views of the other inspectors (which, because of the timing of the Warren Farm inquiry, were available to him and the parties). He made the key findings that Warren Farm was poorly located in highway terms and caused the most damage in Green Belt terms. It cannot be said that the Secretary of State was irrational in taking into account and agreeing with his assessment. The second answer to the case advanced is that, in so far as it was necessary for the Secretary of State to undertake a wider exercise of judgment, it is clear how the various inspectors reached their conclusions, and the Secretary of State was in a position to latch onto their premises and conclusions and to accord weight to each in reaching a rational overall view. So far as the related reasons challenge is concerned, the Secretary of State had a clear and detailed account of the different elements of judgment in the various inspectors' reports; it was not incumbent on him to spell out how differences in approach had been interpreted and weighed; it was sufficient for him to set out, as he did, his conclusions on the principal controversial issues, such as Green Belt and highways impact.

162. In my judgment this issue has to be determined in terms of rationality and reasons rather than procedural fairness. The issue is not so much whether the various parties had a fair opportunity to make representations as between alternative proposals (they did so repeatedly in the individual inquiries), but whether the Secretary of State had a reasonable basis for choosing between the proposals on the basis of a series of separate reports and whether his approach has been adequately explained.

163. The issue is one about which I became increasingly concerned as the arguments developed. The more illustrations that were given (by applicants and respondents alike), the more question-marks were raised in my mind about how the Secretary of State could have reconciled, and based a rational decision upon, the diverse material before him.

164. Although each site was considered by reference to its specific features, a comparison between sites also ran through the entire exercise. As it was put in the New Barn Farm decision letter (para 16):

"In considering where the additional provision should be made, the Secretary of State has looked at each of the competing proposals initially on its merits and each is the subject of a separate decision letter. However, in each case he has also considered, having regard to the other Inspectors' reports, whether there is an alternative site for the development which would have fewer and/or less harmful effects."

That comparison necessarily involved the evaluation of relative Green Belt impacts and of the extent to which such relative impacts were outweighed by other considerations. In each case harm to the Green Belt impact was rightly identified as a significant issue.

165. It is very difficult to see how that exercise of evaluation could be carried out on the basis of the individual inspectors' reports alone and without the benefit of comparative site inspections and/or some other method of achieving a consistent overall view. Each of the individual inspectors had of course reached his own view about relative Green Belt impact and countervailing considerations. But in each case the view was based on subjective judgment, and in none was it based on an assessment of all the competing sites or on the basis of full information about any of the competing sites (a point reinforced by the fact that the inquiries were held at different times and relevant information emerged over time). There were inevitable differences of approach between inspectors, as highlighted by Mr Elvin in his submissions.

166. The reconciliation of all that material in order to produce a composite overall view was a major task. It was also of central importance for the final decisions. Concerns had been raised by the parties about how it was to be approached. But on this important point the decision letters are less than helpful about precisely how the requisite judgments were made by the Secretary of State. They do not indicate whether the Secretary of State had allowed for differences of approach between inspectors. They do not say which, if any, of the comparative assessments made by individual inspectors is the one chosen by the Secretary of State as guiding his overall judgment between the competing sites, or why he has preferred one inspector's subjective judgment to another.

167. It is true that there were important site-specific issues, such as the access question at Simplemarsh Farm and the fact that Warren Farm was least able to meet need as a single site; and that the Secretary of State placed very considerable weight on those issues in ruling those sites out (see e.g. NBF decision letter, para 17 for a summary). But, as I read the decision letters, it was still a weighing exercise: such individual points were not conclusive in isolation, but by reason of their weight in the overall balance. I say that even in relation to Simplemarsh Farm, where the Secretary of State stated that the deficiency in the standard of access would be sufficient to justify refusal and that the weaving effects added to the unacceptability of the proposal (Simplemarsh Farm decision letter, para 13). He still went on to look at alternative sites and included Green Belt harm as well as the access objection in his overall reasons for refusal (para 17). So too in the case of Warren Farm the decision was based not just on its unsuitability to meet need but also on the fact that it was the most harmful of the sites in Green Belt terms (Warren Farm decision letter, para 16).

168. Ultimately, as it seems to me, the Secretary of State was asking himself where the balance of advantage lay and whether the factors in favour of a proposal were such as to override the damage that that proposal would cause to the Green Belt and so constitute very special circumstances justifying development in the Green Belt. It is to that overall balance that the New Barn Farm decision letters refers when, at para 18, it states that the Secretary of State has concluded that "none of the other potential sites would give rise to less harmful effects than would be the case with New Barn Farm". Thus one comes back to the question of whether and how the Secretary of State was able rationally to carry out that weighing exercise on the basis of a series of separate reports, each with differences of approach and of subjective judgment.

169. Avalon is in a weaker position than the other applicants in relation to this issue since at first sight, on the Secretary of State's approach, he did not need to engage in a full examination of the M4 sites once he had decided as a matter of policy that an M25 site was to be preferred, if suitable, and that there should only be a single site. On the other hand, even leaving aside Mr Elvin's other submissions on this aspect of the matter, it seems to me that Avalon can properly complain about any deficiencies in the comparative exercise. That is because the exclusion of the M4 sites was dependent in the final analysis upon the view that there was an acceptable single M25 site, namely New Barn Farm. It is implicit that the Secretary of State had not ruled out the possibility of choosing an M4 site in preference to, or in conjunction with, an M25 site if that would be substantially less harmful to the Green Belt than a single M25 site. If the choice of New Barn Farm as a suitable single site was reached by a process that did not provide a valid basis for comparative assessment, in particular of impact on the Green Belt, then the whole question of alternative M4/M25 sites is opened up.

170. In the end, for the reasons summarised above, I have come to the view that the general thrust of the applicants' submissions on this issue is correct and that the Secretary of State did not have a reasonable basis for the assessment of competing sites, or at least has failed adequately to explain how he carried out the exercise in a way that, notwithstanding the apparent difficulties, withstands scrutiny on rationality grounds. The situation facing the Secretary of Sate was exceptional, if not unique. I do not think that enough was done, or has been shown to have been done, to provide a reasonable reconciliation of the diverse inputs upon the basis of which the decision fell to be made.

171. The conclusion that I have reached affects the validity of all the decisions under challenge.

172. I do not intend to prescribe any particular way by which the difficulty facing the Secretary of State might be overcome. It does not follow from my judgment that a full further inquiry is needed. There may be reasonable means of reconciling the diverse inputs without so elaborate a device, either by way of fuller personal consideration of those inputs (and fuller exposition of how the differences of approach have been handled) by whoever takes the decision in the name of the Secretary of State, or by the appointment of an inspector to consider one or more specific issues, notably so as to obtain a unified overall assessment of Green Belt issues. I do not think that I can usefully say more than that.

173. One of the issues raised at the New Barn Farm concerned the construction of an underbridge to gain access to the MSA from the westbound carriageway of the M25. The underbridge was omitted from the planning application because the M25 itself is Crown land, and details were not provided. RLG contended that the application was deficient in that respect and that planning permission would be needed. They also contended that the construction of an underbridge would be so disruptive as to be unacceptable.

174. The inspector, whilst observing that the legal position in respect of the validity of the application and the intended procedural method for dealing with agreements for building the underbridge were matters for the Secretary of State, found the developer's case on the Crown land issues more persuasive than that of RLG (report, paragraphs 12.47-12.49). In particular, after referring to arguments advanced by RLG to the effect that sections 62(2) and 278 of the Highways Act 1980 did not give authority for the works, he said that he did not see any undue problem with granting a planning permission for the MSA prior to, but dependent on, the satisfactory completion of the necessary agreements, so that the MSA could not be built until agreement was reached with the Highways Agency as to the building of the slip roads and underbridge. Under the heading of highways issues, he stated that he was not persuaded that possible construction difficulties and disruption to users of the M25 would, of themselves, justify a refusal of planning permission; there appeared to be no sound reason which should make crossing the M25 an insurmountably difficult or unacceptably disruptive building operation (paragraph 12.45).

175. In paragraph 12 of the decision letter, the Secretary of State said that there was nothing to cause him to disagree with the inspector's conclusions on highways issues and stated that, so far as Crown land was concerned, he agreed that there was no undue problem with granting a planning permission for the MSA prior to, but dependent on, the satisfactory completion of necessary agreements. Condition 4 of the permission granted provides:

"No part of the development shall take place until there is in place an Agreement with the Highways Agency under section 278 of the Highways Act 1980 for the construction of the works lying outside the application site and within the boundary of the M25 as identified in drawings ...."

176. RLG submit in the claim form that the Secretary of State failed to deal with a substantial issue, and failed to take into account a material consideration, namely the adverse impact of construction work on users of the M25; failed to deal with further substantial issues, namely (1) whether the planning application was deficient, (2) whether the land on which the tunnel was proposed to be constructed was Crown land, and (3) the effect in law of sections 278 and 62 of the Highways Act 1980; erred in law if he agreed with the inspector on these issues; and in any event failed to have regard to a material consideration, namely his own policies as expressed in Circular 18/84; and condition 4 is flawed, because the drawings identified do not show in any detail the relevant works nor the materials to be used nor the finished form of the tunnel. Before me, in the light of the evidence filed on behalf of the Secretary of State, the submissions have proceeded on the basis that the Crown does have ownership of the relevant land. To that limited extent the issues have been narrowed.

177. Mr Porten has dealt with the matter in this way. He submits that the Secretary of State failed to deal with the submissions made at the inquiry about the deficiency of the planning application. Nor did the Secretary of State address the point made that in relation to another MSA inquiry the Highways Agency had indicated that it was appropriate for an underbridge to be included in the planning application so that its impact could be addressed in the environmental statement. Although at the New Barn Farm inquiry four possible options were discussed as to the method of building the underbridge, it went no further than that. The position was that the application was deficient by its omission of the underbridge. Alternatively the Highways Agency should have followed the procedure in Circular 18/84, which would have enabled the underbridge to be considered at the same inquiry.

178. As to the points on the statute, Mr Porten submits that the inspector was wrong to conclude that the work could satisfy the requirements of s.62(2) of the Highways Act 1980, which empowers the carrying out of any work "for the improvement of the highway". The provision of an access road to an MSA, it is submitted, is not an improvement to the highway: it serves a private development and is an integral part of the MSA. Section 278 does not provide any wider authority, since it empowers a highway authority, if satisfied it will be of benefit to the public, to enter into an agreement "for the execution by the authority of any work which the authority are or may be authorised to execute". Further, the underbridge required an environmental assessment (an issue covered below in the separate section on the regulations governing environmental assessments); and, as a separate matter, it was premature and wrong to grant permission for an MSA that relied on the underbridge without first assessing the environmental impact of the underbridge or having any mechanism to do so. These were substantial issues with which the Secretary of State needed to deal but failed to deal in his decision letter.

179. It is submitted that the very fact that the Secretary of State now raises the possibility of a future environmental assessment in respect of the underbridge, and even seems to contemplate the possibility that the underbridge might not be acceptable, reinforces the argument that permission should not have been granted for an MSA which depends upon it. Moreover, if the impact of the underbridge is still to be assessed, how could the Secretary of State possibly conclude that New Barn Farm would be less harmful than other sites?

180. Alternatively, because of the terms on which permission has already been granted, the concessions about a possible environmental assessment in respect of the underbridge may be ineffective. The only relevant condition is condition 4, which requires a section 278 agreement with the Highways Agency. It is possible that the Highways Agency might enter into such an agreement irrespective of the outcome of an environmental assessment. It might even be obliged to enter into such an agreement: cf. R v. Warwickshire County Council, ex parte Powergen plc [1997] 3 PLR 62, where it was held to be unlawful for the county council, as highway authority, to exercise an effective veto on the planning appeal process by refusing to enter into a section 278 agreement on grounds which had already been rejected by the inspector on appeal; see also Proberun Ltd. v. Secretary of State [1990] 3 PLR 79. The Secretary of State erred by failing to put in a condition that requires any other form of approval of the underbridge before the development can proceed.

181. Mr Sales's response to those submissions reminds the court first that the obligation on the Secretary of State was to give a sufficient account of the reasoning on the main issues in dispute as to enable the parties and the court to understand the reasoning, and that a failure to give reasons may only be relied on to challenge a decision if the interests of the applicant have been substantially prejudiced (see City of Edinburgh v. Secretary of State for Scotland [1997] 1 WLR 1447, Save Britain's Heritage v. Number 1 Poultry Ltd [1991] 1 WLR 153).

182. In this case, Mr Sales submits, the Secretary of State can be seen from the decision letter to have agreed on the relevant points with the inspector, whose report provides the necessary reasons.

183. As to the points of substance, Mr Sales submits that since, as is now accepted, the underbridge is to be constructed on Crown land, it is not subject to ordinary planning controls and was properly excluded from the application (see Lord Advocate v. Dumbarton District Council [1990] 1 All ER 1). In that respect the Secretary of State rightly followed the approach of the inspector in taking the view that the planning application was not deficient. The fact that the Highways Agency had no objection to the inclusion of an underbridge in a planning application for another site is wholly irrelevant and cannot in any event assist the applicants. The Secretary of State was also entitled to agree with the inspector, as he did, that planning permission could be granted prior to, but dependent on, the completion of the necessary agreements with the Highways Agency in relation to the underbridge. Legal authority to construct the underbridge is provided by section 62 of the Highways Act 1980 (though it was not necessary to determine that matter at the stage of planning permission). It would be open to the Highways Agency to refuse to enter into an agreement if there were a new material factor telling against it, e.g. on environmental grounds: there is nothing in the authorities cited by Mr Porten which would prevent that course. There would also have to be a separate agreement with the Crown as land-owner before the matter could proceed. Condition 4 ensures proper control by the Secretary of State over the construction of the underbridge.

184. Thus, it is submitted, there was no failure to deal with the relevant substantive issues; and, even if there was, it caused no prejudice since the Secretary of State's approach was entirely correct in law.

185. Mr Gilbart substantially adopts Mr Sales's submissions, though I think with a slight difference as regards the legal basis upon which the work would be carried out. His position is that the Secretary of State has a power under section 24 of the Act to construct new highways; there are also powers under section 62 and other provisions of the Act relevant to the construction of the underbridge. Section 278 of the Highways Act does not confer the power to construct the underbridge, but gives the power to enter into an agreement to obtain payment in respect of the works. The works relating to the underbridge would not require planning permission, as they would be executed on Crown land and by or on behalf of the Crown. They were properly excluded from the planning application.

186. Mr Gilbart accepts that it was material for the inspector to consider what the effect of the off-site works relating to the underbridge would be, since they were a consequence of the proposed development. But there was ample consideration of that issue at the inquiry. Swayfields put forward detailed evidence on it, considering noise and other effects. Elmbridge did not address it, but RLG called evidence on it. The inspector looked at the issues in his report, and reached his conclusion on the evidence as a whole. It is simply not correct that the environmental effects of the underbridge were put on one side.

187. In any event it is open to the highways authority to consider the environmental effects of the underbridge at a later stage if it takes the view that they have not yet been adequately examined. The authorities cited by Mr Porten would not preclude the withholding of a section 278 agreement on the basis of legitimate concerns about such effects.

188. On this issue I am persuaded by most of Mr Sales's submissions and do not propose to give any extensive repetition of them by way of my reasons for rejecting the applicants' case. I am satisfied that the underbridge does not require planning permission and was properly excluded from the application (though its inclusion might have been a convenient way of having its implications assessed together with the main proposal). I am also satisfied that there exist the requisite powers for the carrying out of the works and that condition 4 was lawful and appropriate. A full environmental assessment in respect of the underbridge can lawfully be dealt with later (and may have to be). If it tells against the construction of the underbridge, the Highways Agency will be able lawfully to decline to enter into a section 278 agreement. So far as concerns the giving of reasons, enough was said in the decision letter by adopting material parts of the inspector's conclusions; and if the reasons were insufficient, that has not caused the applicants substantial prejudice, since the underlying issues are known and the inspector's conclusions on them were correct.

189. The one aspect of this issue which troubles me is that, unless and until the full environmental impact of the underbridge is known, a relevant element is missing from the balancing exercise which the Secretary of State has to carry out in determining whether New Barn Farm is less harmful overall than any of the alternative sites. Although there was some examination of the possible effects of the underbridge at the inquiry, and the inspector was not persuaded that possible construction difficulties and disruption should of itself justify a refusal of planning permission (NBF report, para 12.45), that falls short of a full consideration of all environmental effects and does not tell one how the Secretary of State might take them into account in reaching his decision between competing sites.

190. I would not quash the New Barn Farm decision for that reason, but it is a point that in my judgment needs to be borne in mind in relation to any re-assessment of the relative merits of the various proposals.

191. The issue under this head was not raised at the inquiry or at any time prior to the decision letter, but is put forward as a point of law going to the Secretary of State's power to grant planning permission. It is based on the application of the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 ("the 1988 Regulations") and the judgment of Sullivan J in R v. Rochdale MBC, ex parte Tew [1999] 3 PLR 74. The 1988 Regulations implement in part Council Directive 85/337/EEC on the assessment of certain public and private projects on the environment.

192. It is common ground that the New Barn Farm proposal was one to which the 1988 Regulations applied. It was a "Schedule 2 application", defined in regulation 2(1) as "an application for planning permission ... for the carrying out of development of a description mentioned in Schedule 2, which is not exempt development and which would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location". MSAs are specifically listed as item 10(k) of Schedule 2. That the development would be likely to have significant effects on the environment is illustrated by the inspector's views, accepted by the Secretary of State, as to its adverse effects on the countryside.

193. Where an application is one to which the 1988 Regulations apply, there is a prohibition on the grant of planning permission without consideration of environmental information. The prohibition is contained in regulation 4(2), as amended:

"The local planning authority or the Secretary of State or an inspector shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration and state in their decision that they have done so."

The grant of permission by the Secretary of State in contravention of regulation 4 is to be treated, for the purposes of s.288 of the 1990 Act, as action of the Secretary of State which is not within the powers of the Act: see regulation 25.

194. "Environmental information" is defined in regulation 2(1) as including in particular "the environmental statement prepared by the applicant or appellant", and an environmental statement is defined in turn as "such a statement as is described in Schedule 3". Schedule 3 states that an environmental statement comprises a document or series of documents providing, for the purpose of assessing the likely impact upon the environment of the development proposed to be carried out, the following specified information:

"(a) a description of the development proposed, comprising information about the site and design and size and scale of the development;

(b) the data necessary to identify and assess the main effects which that development is likely to have on the environment;

(c) a description of the likely significant effects, direct and indirect, on the environment of the development, explained by reference to its possible impact on - human beings; flora; fauna; soil; water; air; climate; the landscape; the inter-action between any of the foregoing; material assets; the cultural heritage;

(d) where significant adverse effects are identified with respect to any of the foregoing, a description of the measures envisaged in order to avoid, reduce or remedy those effects; and

195. In ex parte Tew the grant of planning permission was quashed on the ground that the application, being an outline application with various reserved matters, did not enable the environmental statement to contain a sufficient description of the proposed development to comply with the requirements of Schedule 3 to the 1988 Regulations. What is submitted for Elmbridge and RLG is that the situation in the present case is similar and should lead to a like result.

196. The application in respect of New Barn Farm was an outline application with all matters reserved save for part of the access proposals. The brief particulars of the proposed development given in the application itself were:

"Motorway service area providing restaurant, toilets, overnight accommodation, petrol/diesel forecourt, parking for all road users and picnic areas, and including access/egress slip roads with underbridge link serving both sides of M25 motorway."

Site locations plans and an environmental assessment were submitted with the application. The extent of the reserved matters is illustrated by some of the conditions ultimately imposed on the grant of planning permission by the Secretary of State:

"1. Approval of the details of the siting, design and external appearance of the buildings, and the landscaping of the site (hereinafter called 'the reserved matters') shall be obtained from the local planning authority in writing before any development is commenced.

6. Details of the landscaping to be submitted in accordance with condition 1 above shall include proposed finish levels or contours, means of enclosure, car parking layouts, other vehicle and pedestrian access and circulation areas, hard surfacing materials, minor artefacts and structures ..., proposed and existing functional services above and below ground, retained landscape features and proposals for protection, and fencing provided for habitat creation.

7. No development shall take place until there has been submitted to and approved in writing by the local planning authority a plan indicating the positions, design, materials and type of boundary treatment to be erected ...."

197. Mr Porten submits that an application for outline planning permission with all matters reserved save means of access cannot satisfy the requirements of the 1988 Regulations; and the omission of details of the underbridge from the means of access is a further basis of objection under the 1988 Regulations. Although there was an environmental statement, it was not a statement complying with Schedule 3 since there was an insufficient description of the proposed development. Mr Porten relies on the extended reasoning of Sullivan J in ex parte Tew, in particular at pages 95-99 of the report. I need cite only a few passages in order to give the flavour of the reasoning:

"While a bare outline application is permissible on a purposive approach to regulation 3 of the applications regulations, an environmental statement based upon such an application could not begin to comply with the requirements of Schedule 3 to the assessment regulations .... I would not wish to go far as [counsel] and say that it is not possible to make any application for outline planning permission for a development that falls within Schedule 1 or Schedule 2. An outline application with only one or two matters reserved for later approval might enable the environmental statement to provide a sufficient description of the development proposed to be carried out ....

I have set out above the description of the development for which outline planning permission was sought, and granted, in the present case. The application does not contain any information as to the design, size, or scale of the development. The fact that the environmental assessment was based on the illustrative masterplan and indicative schedule of uses is a tacit acknowledgement that the description of the development is inadequate for the purposes of Schedule 3. I can understand the advantages of an illustrative masterplan in an ordinary outline application for a business park, but once it is decided that such a project falls within Schedule 2, Schedule 3 requires the environmental statement to assess the likely impact of the development that is proposed to be carried out, not the impact of a development that might or might not be carried out depending on whether subsequent submissions for approval of reserved matters are or are not in accordance with an illustrative masterplan.

... Once outline planning permission has been granted, the principle of the development is established. Even if significant adverse impacts are identified at the reserved matters stage, and it is then realised that mitigation measures will be inadequate, the local planning authority is powerless to prevent the development from proceeding.

... There may well be scope for argument in some cases as to the extent to which details of mitigation measures may be left for subsequent approval. I do not suggest that an environmental statement must contain every detail, provided the mitigation measures are described. In the present case, because there is no description of the development proposed to be carried out, nor any description of its design, size, or scale, it is not possible to described the proposed mitigation measures. The conditions in the outline planning permission effectively require that descriptions shall be given in due course when the design, scale and size of development to be constructed is known.

The fundamental difficulty in the present case is that the environmental statement describes the environmental effects of a business park development carried out in accordance with the illustrative masterplan and the indicative schedule of land uses, but the outline planning permission was not tied in any way to either of those documents ....

In summary, while the council took into consideration 'environmental information' about the effects of carrying out a business park development in accordance with an illustrative masterplan and an indicative schedule of land uses, that was not the development that was proposed to be carried out in the application for planning permission, nor was it the development for which planning permission was granted; nor was the information sufficient in any event to comply with the requirements of Schedule 3: see, for example, para 2(d), as to mitigation measures. It follows that the council did not have power to grant planning permission for the business park: see regulation 4(2) of the assessment regulations ...."

198. That reasoning applies with equal force in the present case, submits Mr Porten. The application did not contain sufficient detail to comply with Schedule 3 and the conditions on which outline permission was granted did not tie the permission to any details put forward in the environmental statement or otherwise. Breach of the 1988 Regulations must lead to the quashing of the planning permission even though the point was not taken by Elmbridge or RLG prior to the grant of permission.

199. Mr Sales contends first that the terms of Mr Porten's submissions and of paragraph 48 of the claim form indicate that the point is being put forward as one of principle, i.e. that an outline planning permission with all matters reserved save means of access is not capable of meeting the requirements of the 1988 Regulations. As such, the point is not supported by the decision in ex parte Tew, which makes it clear that the question is one of fact and degree. The judge quashed the grant of permission for non-compliance with the 1988 Regulations because there was as a matter of fact "no description" of the development proposed to be carried out, nor of its design, size or scale. That is to be contrasted with the present case, where the application was much more detailed (though the court does not have the full factual material before it) and an extensive environmental assessment was prepared by Swayfields. The inspector's report is replete with references to the environmental issues, as is to be expected where a central question was the impact of the proposed development on the Green Belt. There was no suggestion by the inspector that the development was inadequately defined, and neither Elmbridge nor RLG expressed any concern on the point. In any event, the inspector heard and reached conclusions on extensive evidence in relation to the environmental effects of the proposal and the objectives of the 1988 Regulations and the relevant Directive were met. No substantial prejudice was suffered by the applicants and relief should be refused. As to the underbridge, that was properly excluded from the application and did not fall within the scope of the 1988 Regulations: there could be no breach of regulation 4 in granting permission in respect of an application which did not include the construction of the underbridge. The environmental effects of the underbridge are a matter for future consideration.

200. In supplementary submissions Mr Sales has expanded on the effect of the 1998 Regulations on outline applications. He draws my attention to paragraph 48 of Circular 2/99 on Environmental Impact Assessment, which states that the requirements of the Regulations must be met at the outline stage and points to the possibility of the local planning authority requesting further information if the Regulations require more information than has been provided in the outline application. He submits that the mere existence of a discretion on the part of a developer, in the sense that he is not expressly bound to follow the letter of the illustrative proposals, cannot constitute a breach of the regulations. A developer's proposals on reserved matters may, given sufficient detail (which was not present in ex parte Tew), constitute a description of the development proposed to be carried out. The key issue in policy terms cannot be the mere existence of a formal discretion to depart from the proposals initially submitted, but the need to ensure that changes to those proposals which would have a significant effect in environmental terms are not implemented in the absence of a proper environmental assessment. But that possibility is excluded by the EC legislation, which provides in para 13 of Annex II of Directive 97/11 (amending the original Directive) that an assessment is required in respect of any change or extension which may have significant adverse effects on the environment. There is no direct equivalent of that in the implementing regulations, but none is needed: in so far as the changes affect the subject matter of the original application, there must be a further application for planning permission; and in so far as they relate to reserved matters, the local planning authority and the Secretary of State on appeal are precluded by domestic law and/or obligations arising under the Directive from giving approval to plans for reserved matters which depart from the developer's initial proposals in a manner which has a significant adverse effect on the environment. The availability of judicial review of any decision in respect of reserved matters ensures that there exists a safeguard against the possibility of the Directive and Regulations being circumvented at the stage of approval of reserved matters.

201. Mr Gilbart adopts Mr Sales's submissions and adds to them. He points out that the documentation which supported the planning application was the subject of careful and detailed discussion with Elmbridge; the application was accompanied by a detailed environmental statement, which was supplemented subsequently; and the public was made aware of the details discussed at the inquiry. The way in which it was expected that the site would be developed was dealt with extensively in the proof of Swayfields' environmental expert, which covered such matters as environmental characteristics (site description, topographical context, etc.), visibility studies (screening, views, etc.), the requirements of MSAs (referring inter alia to an illustrative landscape masterplan), the design of the service area (referring to the principal buildings as shown on the illustrative plan, the vehicle parks, lighting and numerous other matters). There was no suggestion at the time that the material was inadequate. Elmbridge did not exercise its power to request further details or suggest that the matter could not be dealt with by way of an outline application. Even after the decision in ex parte Tew it did not raise any concern with the Secretary of State, e.g. to suggest that if permission were granted it should be on conditions that tied the permission to the form of plan considered at the inquiry. The present case is distinguishable on its facts from ex parte Tew, but in any event, having regard to the applicants' conduct, the court should exercise its discretion against quashing the planning permission on this ground.

202. After the conclusion of the hearing, I was sent by the parties a copy of the decision of the House of Lords in Berkeley v. Secretary of State for the Environment (6 July 2000). In that case Secretary of State was in breach of the 1988 Regulations by granting planning permission without considering whether the development fell within Schedule 2 and therefore required an environmental statement. It was conceded before the House of Lords that the fact that a court is satisfied that an environmental statement would have made no difference to the outcome is not a sufficient reason for deciding, as a matter of discretion, not to quash the decision. The narrow issue was whether there had in practice been substantial compliance with the Directive (as transposed by the 1988 Regulations) by reason of the material made available at the inquiry.

203. Lord Hoffmann, giving the leading speech, laid great stress on the importance of an environmental statement and expressly endorsed the concession that nothing less than substantial compliance with the Directive would do. He said this:

"A court is therefore not entitled retrospectively to dispense with the requirement of an EIA on the ground that the outcome would have been the same or that the local planning authority or Secretary of State had all the information necessary to enable them to reach a proper decision on the environmental issues.

Although section 288(5)(b), in providing that the court 'may' quash an ultra vires planning decision, clearly confers a discretion upon the court, I doubt whether, consistently with its obligations under European law, the court may exercise that discretion to uphold a planning permission which has been granted contrary to the provisions of the Directive. To do so would seem to conflict with the duty of the court under article 10 (ex article 5) of the EC Treaty to ensure fulfilment of the United Kingdom's obligations under the Treaty. In classifying a failure to conduct a requisite EIA for the purposes of section 288 as not merely non-compliance with a relevant requirement but as rendering the grant of permission ultra vires, the legislature was intending to confine any discretion within the narrowest possible bounds. It is exceptional even in domestic law for a court to exercise its discretion not to quash a decision which has been found to be ultra vires ...."

Lord Hoffmann rejected the submission that there had been substantial compliance, holding that "a disparate collection of documents produced by parties other than the developer and traceable only by a person with a good deal of energy and persistence" did not satisfy the requirement on the developer to provide an environmental statement. The planning permission and associated listed building consent were therefore quashed.

204. I make clear at the outset that I do not consider the underbridge to affect the matters here under consideration. It was, as I have held, lawfully excluded from the planning application. It can be subject to a separate environmental assessment if necessary. The focus here must be the application that was actually made and the related environmental assessment.

205. In my judgment, however, the balance of Mr Porten's submissions concerning breach of the 1988 Regulations are well founded, profoundly unattractive though it is that they were not raised prior to the proceedings before this court. I agree that the issue cannot be decided against the Secretary of State simply as one of principle, based on the nature of the planning application as an application for outline permission. The question is one of fact and degree. In reality, however,. Mr Porten did not put his case only in terms of a point of principle but also put it on the basis of the particular facts of the individual case. I do not regard the present case as being distinguishable on its facts from ex parte Tew. This too was an application for outline planning permission with most matters reserved. The fact that part of the access proposals was not reserved does not provide a sufficient point of distinction. Here too the application was accompanied by illustrative plans (I even note the use of the similar language of an "illustrative masterplan", though the terminology is not of course decisive) and an environmental statement. That material gave a description of how the development might be carried out, including mitigation measures. But in the absence of anything to tie the permission to a development in that form, the material did not give a description of the development proposed to be carried out. There was nothing to tie them together, since the conditions on which permission was granted did not have that effect but left almost everything open to reserved matters approval. In that respect the environmental statement suffered from exactly the same deficiency as the statement in ex parte Tew.

206. I do not accept that ex parte Tew left open the possibility that the problem could be avoided by the provision, at the stage of the outline application, of sufficient detail about reserved matters, compliance with the Directive being assured by the existence of a power to withhold approval of reserved matters in the event that they differed materially in terms of environmental effects from those considered at the planning application stage. It seems to me that the reasoning of the judgment is that such matters, being only illustrative and not being measures specifically authorised by the grant of planning permission, cannot properly be said to constitute details of the development proposed to be carried out.

207. Accordingly, applying what I perceive to be the reasoning in ex parte Tew, I conclude that in the present case too the planning permission was granted by the Secretary of State without consideration of an environmental statement such as is required by the 1988 Regulations. By virtue of regulations 4(2) and 25, the grant of planning permission was therefore ultra vires.

208. No argument was advanced before me to the effect that ex parte Tew was wrongly decided. Everything was put in terms of factual distinction between this case and ex parte Tew. The points raised by Mr Sales in his supplementary submissions do seem to me, however, to touch on the question whether the reasoning in ex parte Tew, assuming I have correctly understood it, needs to be applied in its full rigour in order to ensure compliance with the Directive, or whether some modification to it is possible in order to give greater practical scope for outline applications whilst still complying with the Directive. This judgment is not the right place in which to embark on any such exercise. The right course for me to adopt is to follow ex parte Tew (see the principles expounded in R v. Greater Manchester Coroner, ex parte Tal [1985] QB 67), leaving it to a higher court to decide whether any departure from the reasoning in ex parte Tew is warranted.

209. I should add that if I had a broad discretion in this matter, I might have been inclined not to quash the planning permission on this ground alone, in view of the fact that the point was raised by Elmbridge and RLG so late in the day. I recognise that the decision in ex parte Tew may have taken many practitioners by surprise and that parties might be forgiven for not raising the point previously. But there was sufficient time to draw the implications of the decision to the attention of the Secretary of State between the date of the judgment in May 1999 and the grant of planning permission in October 1999, which Elmbridge/RLG failed to do. Be that as it may, it seems to me that the decision of the House of Lords in Berkeley v. Secretary of State militates strongly against my refusing relief for that reason. Lord Hoffmann's observations, quoted above, suggest that it would be wrong for me to exercise my discretion so as to uphold a planning permission granted in breach of the 1988 Regulations and, therefore, of the Directive. In any event the point is academic, given that the permission falls to be quashed in any event on other grounds.

210. It may be that the breach of the Regulations that I have identified can be cured by an appropriate condition tying the grant of permission to the illustrative material upon which the inspector's conclusions, as accepted by the Secretary of State, were based. That, however, is not a matter that falls for decision by me.

211. Mr Porten submits that, in so far as the Secretary of State's preference for New Barn Farm was based on his view that no fifth lane would be required, it was irrational and contrary to the proper conclusion that he should have reached on the available technical evidence. The short response by Mr Sales is that this was a matter on which reasonable experts have differed and which was determined in favour of the Secretary of State's view by the New Barn Farm inspector himself and again by the inspector at Elk Meadows. It is unsustainable to suggest that the Secretary of State's conclusion is irrational. I agree. I have decided against the Secretary of State on the issue of procedural fairness but, leaving that aside and considering the evidence that was actually before the Secretary of State, there was ample material on which he could rationally conclude that no fifth lane was required.

212. Mr Porten further submits that the Secretary of State unlawfully abrogated his statutory responsibility by effectively delegating the decision to the Highways Agency (cf. Lavender & Son v. Minister of Housing [1970] 1 WLR 1231, 1240-1). By consulting only with the Highways Agency after receipt of the inspectors' reports, and by basing the decisions on the Agency's absence of objection to New Barn Farm and objection to other sites, the Secretary of State did not properly perform his duty or exercise his discretion, but wrongly delegated the decision to the Agency. Mr Sales counters that this claim is misconceived. The Secretary of State took advice from the Highways Agency on a single issue which served merely to confirm the Agency's earlier position. It was open to the Secretary of State to accept or reject that advice. The Secretary of State then exercised his discretion to decide upon the various proposals taking in a whole range of issues. There was no more unlawful delegation than if the Highways Agency's confirmation had not been sought. Again I accept Mr Sales's submission: acceptance of the Highways Agency's advice gave rise to the issue of procedural fairness but involved no unlawful delegation.

213. Another issue raised by Mr Porten, which comes a long way down the list but is asserted by him not to be a make-weight argument, is an alleged failure by the Secretary of State to give proper reasons. The first point under this heading relates to the underbridge and has been considered sufficiently above.

214. The second point relates to the question whether a fifth lane was needed at New Barn Farm. Mr Porten submits that the Secretary of State did not deal adequately with this in his decision letter. He did not explain why he was adopting the Highways Agency's advice (which, for reasons covered elsewhere, Mr Porten submits was not supported by the content of the MVA report). The unusually lengthy evidence filed in these proceedings on behalf of the Secretary of State contains highly contentious material and cannot cure the omission of adequate reasons from the decision letter.

215. Mr Sales submits that if the Secretary of State is right that the Highways Agency letter of 30 July 1999 and MVA report added nothing material (an issue considered in detail already), then that effectively resolves this reasons challenge in favour of the Secretary of State. The inspector at New Barn Farm had rejected the claimants' arguments on the fifth lane issue, and the Secretary of State agreed with those conclusions in the decision letter. The Highways Agency's advice was confirmatory of the inspector's conclusions, and it is clear in any event that the Secretary of State accepted that advice. It was not incumbent on him to engage in a detailed technical rebuttal of the claimants' highways arguments. Nor can the omission of technical details be said to have caused substantial prejudice, since the technical reasoning employed could only have been subject to challenge on grounds of irrationality and any such challenge would inevitably have failed. Mr Gilbart, adopting Mr Sales's submissions, adds some nuances of his own and stresses that reasons can properly be succinct.

216. Here too I accept Mr Sales's submissions. I have dealt with the expert dispute in Elmbridge/RLG's favour in the context of procedural fairness, but I would not find in their favour on the basis advanced here.

217. Mr Smith for Totalfina/Hadmere raises a number of additional arguments under the heading of highway matters. First he points out that the claimants' case in respect of Warren Farm and Simplemarsh Farm was that whilst each could be justified as a single site, need could only adequately be met by the provision of two sites and that the combination of Warren Farm and Simplemarsh Farm would do less harm than any other combination. The Secretary of State, however, adopted a one site strategy, because of the additional disruption of traffic resulting from MSAs. Yet in the case of Warren Farm he had accepted the inspector's view that there would be no adverse highway impact (para 16 of the Warren Farm decision letter). It follows that additional disruption of traffic was not a valid reason for rejecting Warren Farm as part of a two-site combination; and in that respect the adoption of a one-site strategy was irrational.

218. Mr Sales's short response to that argument is that it is based on a manifestly false premise. In reaching his decision on the one-site strategy, the Secretary of State took into account not only additional disruption of traffic but also, and very importantly, the harm to the Green Belt. For example, the end of para 17 of the Warren Farm decision letter stated that in his view "the benefit to motorists on the M25/M4 of having a second MSA to serve their needs is outweighed by the harm to the Green Belt".

219. In my judgment Mr Sales's response is correct (and the fact that harm to the Green Belt was indeed a factor in the equation goes to the issue of comparative assessment that I have already considered). Mr Smith's submission as to the irrationality of the rejection of Warren Farm as part of a two-site combination is untenable. In the circumstances I do not think it necessary to make reference to such additional points as were made by Mr Gilbart and Mr Warren in support of the Secretary of State's case on this issue.

220. Mr Smith turns next to Simplemarsh Farm and submits that the Secretary of State acted irrationally in agreeing with the inspector's conclusion that the standard of access proposed was so deficient as to justify refusal of planning permission (inspector's report on Simplemarsh Farm, paras 8.37 and 8.41; decision letter, para 13). The inspector took the view that queues on the M25 off-slip roads would be a serious deterrent, leading to a failure of the MSA to meet the needs of motorists. He also took the view that there was evidence, not convincingly rebutted, that the effect on the transport infrastructure at junctions beyond the modelled area would be unacceptable. Mr Smith submits that there was no evidence before the inspector to support either conclusion. He also seeks to persuade the court to take the view that peak-time queues at off-line MSAs are common but that people with a need will still use the MSA, and that to treat the deterrent effect as so important is irrational.

221. I am wholly unpersuaded by any of those submissions. In my judgment the issue was covered in evidence and argument before the inspector, the inspector was reasonably entitled to reach the conclusion he did, and the Secretary of State was likewise reasonably entitled to accept that conclusion. Although this issue was the subject of detailed submissions by Mr Druce for Runnymede, as well as by Mr Sales for the Secretary of State, I do not propose to lengthen this already over-long judgment with that detail. Suffice it to say that I consider the position to be clear from a reading of the conclusions (section 8) of the inspector's report on Simplemarsh Farm and the related decision letter.

222. In so far as Mr Smith sought also to submit that the rejection of Simplemarsh Farm as part of two-site combination was irrational, I reject that submission too. The two-site strategy was rationally rejected for broader reasons. The separate objections to Simplemarsh Farm were, as I have indicated, also rational. Again I do not consider that further elaboration of my reasons is necessary.

223. Avalon raises an additional issue which I need briefly to consider. It concerns the reasoning of the Great Hazes inspector, as adopted by the Secretary of State, on the important topic of encroachment into the countryside. As Mr Elvin submits, the extent of encroachment must be regarded with reference to the proposed measures for mitigation. At paragraphs 6.5.3 to 6.5.12 of his report the inspector concluded that those measures would not overcome the harm. At paragraph 14 of the decision letter the Secretary of State agreed. But, it is submitted, the inspector's conclusions on mitigation were confused. The MSA would be in dense woodland, with access through the trees to the motorway. That would be the only break in the existing screening, and the view would be from the motorway itself. The view from the motorway would not be a sensitive view and the inspector did not conclude that the MSA would be widely visible from the surrounding area. He also agreed that the major criticism against the woodland providing a permanent screen, namely windblow, could not be justified. At paragraph 6.5.11, however, towards the end of a section on mitigation measures, he concluded:

"The purpose of mitigation is to reduce or alleviate a harmful effect or effects. A landscaping scheme of the highest quality would not however completely screen the development, lit or unlit. Indeed, if it did, motorists would pass it by without being aware of its presence. The proposed measures are generally as effective as could reasonably be expected but they do not make an inappropriate development in the Green Belt appropriate. Unobtrusiveness or even a total screening of this scheme from all directions, day and night, would not do that."

224. The submission made is that that approach was confused. The inspector should have concluded, on the basis of his findings, that the mitigation measures proposed were substantially effective and dealt with how they mitigated the effect of encroachment, rather than simply reciting the principle of inappropriate development. He, and the Secretary of State in adopting his conclusions, thereby failed properly to have regard to a material consideration, namely the effect of the mitigation proposals on the encroachment on the countryside, and/or failed to give adequate or intelligible reasons for concluding that the proposed mitigation measures failed to overcome harm. In the absence of a proper assessment of the effect of the mitigation measures on the harm to the Green Belt, it was impossible to carry out a proper weighing of Green Belt harm against other factors.

225. Mr Sales describes those criticisms as overly legalistic and unfair. They omit to mention the following paragraph of the report, paragraph 6.5.12, which states:

"And so I return to the basis objection. This is to the radical change in character of this land from its open, undeveloped state to a site accommodating a large amount of buildings, roads and other hard surfaces and the various illuminations to be expected in a scheme designed to attract passing trade throughout all 24 hours. It is this essentially urban feature which, even with the mitigation, would cause so much harm to the Green Belt and the countryside."

The last sentence refers back to the inspector's earlier findings concerning the harm to the Green Belt and countryside. Read in context, it is submitted, what the inspector was saying was that the mitigation measures did not obviate the harm to the Green Belt and the countryside which would be caused by the proposal, such as to warrant dismissing the latter factor as an objection to planning permission. That is unexceptionable and the Secretary of State did not err in adopting it.

226. I accept Mr Sales's submissions and reject Avalon's case on this issue. I understand why Mr Elvin criticises the inspector's comments in paragraph 6.5.11, which do not seem to advance matters materially. But when the relevant section of his report is read as a whole, it seems to me that his approach was intelligible and one that was reasonably open to him.

227. I have covered by no means every facet of every argument, but I believe that I have addressed the main points of substance raised by the parties. Such other matters as were raised by the applicants in the course of their submissions were sufficiently unpersuasive as not even to merit separate mention.

228. I have found in favour of Elmbridge/RLG on the issues of breach of legitimate expectation, breach of natural justice and breach of the Assessment of Environmental Effects Regulations. I have also found in favour of Totalfina/Hadmere on the issue of breach of natural justice. I have found in favour of all the applicants, including Avalon, on the issue of failure to carry out a proper comparative exercise.

229. In those circumstances, as it seems to me, various submissions that were made at the hearing to the effect that the quashing of the New Barn Farm decision should not lead to the quashing of the other decisions fall away. My provisional view is that all the decisions under challenge should be quashed, allowing the Secretary of State to reconsider the matter as a whole. I will, however, hear from counsel before I decide on the appropriate form of order.

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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 >> Elmbridge Borough Council & Anor v Secretary Of State For Environment, Transport & Regions & Anor [1999] EWHC Admin 824 (22nd October, 1999) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1999/824.html Cite as: [1999] EWHC Admin 824

England and Wales High Court (Administrative Court) Decisions

ELMBRIDGE BOROUGH COUNCIL and RESIDENTS AND LANDOWNERS' GROUP (ELMBRIDGE) v. SECRETARY OF STATE FOR ENVIRONMENT, TRANSPORT AND REGIONS SWAYFIELDS LIMITED [1999] EWHC Admin 824 (22nd October, 1999)