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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 >> D B Schenker Rail (UK) Ltd & Anor v Leeds City Council [2013] EWHC 2865 (Admin) (24 September 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/2865.html Cite as: [2013] EWHC 2865 (Admin)

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

		The Combined Court Centre Oxford Row, Leeds
		24/09/2013

Her Honour Judge Belcher :

1. This is a claim pursuant to Section 113 Planning and Compulsory Purchase Act 2004 ("the 2004 Act"). The Claimants seek, by Ground 3, to challenge the adoption of the Natural Resources and Waste Local Plan (" the NRWLP") adopted by the Defendant, Leeds City Council ("LCC"), on 16 January 2013. By Grounds 1 and 2 the Claimants seek to quash two policies in the adopted NRWLP "in so far as they relate to two sites" which are owned by the Claimants. The NRWLP is a development plan document and forms part of the local development plan. It covers a period of 15 years from the date it was adopted, namely from 16 January 2013 to 15 January 2028.
2. In this Judgment, references to the trial bundles will be by bundle number, tab number and page number, for example, B1, Tab 12, page 136. The relevant policies in the adopted plan which the Claimants seek to quash are MINERALS 13 and MINERALS 14. In earlier versions of the documents these policies were numbered MINERALS 14 and 15 respectively, and are so numbered in most of the documentation before me. In this Judgment I shall refer to the policies at all times by their final numbers. This includes when quoting from the documents in the bundles where I shall substitute the final policy numbers where appropriate. Plainly, the final version will require no substitution. To indicate a substitution the number will be quoted in italics and placed in square brackets. Thus a document (other than the final version) which refers to MINERALS 14 will, if quoted, refer to "MINERALS [13]". Similarly, I shall refer to paragraph 3.36 and 3.37 under MINERALS 13 by their final numbers and will substitute 3.36 or 3.37 as appropriate for earlier numbered versions using the same method of square brackets and italics to indicate substitution.
3. The First Claimant, DB Schenker Rail (UK) Ltd ("Schenker") has a long leasehold interest in a site at Bridgewater Road South, Leeds ("the Bridgewater Road Site"). The freeholder is Network Rail. The site has an existing rail line which is, and was at the time of adoption of the NRWLP, in use for the importation of aggregates from the Yorkshire Dales with a siding used by Tarmac. On the site there is also an asphalt plant operated by Heidelberg Cement. This site is allocated in the NRWLP under MINERALS 13 as "suitable for the provision of new rail sidings and may be suitable for a canal wharf". This site is referred to in the planning documents as Site 21.
4. The Second Claimant, Towngate Estates limited ("Towngate") owns a site at Stourton Point, Haigh Park Road, Leeds ("the Haigh Park Road site"). This site has canal frontage and 3 existing historic wharves. The site is leased to ASD Metal Services who used the wharves for a successful trial period in 2008. The canal side is reinforced with steel and rock to enable barges to come close alongside for loading. This site is safeguarded under MINERALS 13 as historic wharfage. There are photographs showing the wharves at B1, Tab 9, pages 98 – 101. This site is referred to in the planning documents as Site 14.

The Legal Framework

5. Section 113(3) of the 2004 Act provides that a person aggrieved by a relevant document may make an application to the High Court on the ground that the document is not within the appropriate power and/or a procedural requirement has not been complied with. There is no dispute that the NRWLP is a relevant document for the purposes of Section 113. Section 113 "…brings into play the normal principles of administrative law" (Per Keene LJ in Blyth Valley Borough Council v Persimmon Homes (North East) Limited [2008] EWCA Civ 861 at paragraph 8). Section 113(7) of the 2004 Act gives the High Court power to quash the document in whole or part and by Section 113 (7C) the powers are exercisable generally or in relation to property of the Applicant. This case focussed on the two sites of the respective Claimants. Mr Hobson drew to my attention that the owners of other similarly affected sites have not sought to challenge either the adoption of the NRWLP or the two policies. Whilst that may be relevant to issues of any relief to be granted, it does not, in my judgment, assist me in any way on the substantive issues in this case.
6. By Section 70(2) Town and Country Planning Act 1990 ("the 1990 Act"), a local planning authority dealing with an application for planning permission must "... have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations." By Section 38(6) of the 2004 Act any determination of a planning application must be made in accordance with the development plan unless material considerations indicate otherwise. The effect of these sections, taken together, is that there is a presumption that any application for planning submission which accords with the development plan will get permission unless material considerations indicate otherwise. Conversely, any application which does not accord with the development plan will be refused unless material considerations indicate otherwise. As already stated the NRWLP is a 15 year plan and will affect development on the sites in question until at least January 2028.
7. Section 19 of the 2004 Act sets out certain requirements in connection with the preparation of local development documents. By Section 19(2) the local planning authority must have regard to various matters including "(a) national policies and advice contained in guidance issued by the Secretary of State" and "(i) the resources likely to be available for implementing the proposals in the document". By Section 19(5) of the 2004 Act, the local planning authority must also "… carry out an appraisal of the sustainability of the proposals in each development plan document…" and prepare a report on the appraisal's findings.
8. Under Section 20 of the 2004 Act, when a development plan document is thought to be ready, the planning authority must submit it to the Secretary of State who appoints a planning inspector to carry out an independent examination of the document. So far as relevant for the purposes of this case, Section 20(5) provides that the purpose of the independent examination is to determine whether it satisfies the provisions of Section 19 and whether it is "sound". By Sections 20(7B) and (7C), if the Inspector does not consider it would be reasonable to conclude that the document does satisfy the requirements of Section 19 and is sound, if asked to do so by the local planning authority, he must recommend modifications to render the document compliant with Section 19 and sound. These are known as main modifications. Where the Inspector recommends main modifications, the local planning authority may only adopt a development plan document with those main modifications (Section 23(2A) and (3) of the 2004 Act).
9. There is no statutory definition of the word "sound" but it has been the subject of guidance issued by the Secretary of State at paragraph 182 of the National Planning Policy Framework ("the NPPF") which provides as follows:

"The Local plan will be examined by an independent inspector whose role is to assess whether the plan has been prepared in accordance with the Duty to Cooperate, legal and procedural requirements, and whether it is sound. A local planning authority should submit a plan for examination which it considers is "sound"- namely that it is:

Positively prepared – the plan should be prepared based on a strategy which seeks to meet objectively assessed development and infrastructure requirements, including unmet requirements from neighbouring authorities where it is reasonable to do so and consistent with achieving sustainable development;

Justified – the plan should be the most appropriate strategy, when considered against the reasonable alternatives, based on proportionate evidence;

Effective – the plan should be deliverable over its period and based on effective joint working on cross-boundary strategic priorities; and

Consistent with national policy – the plan should enable the delivery of sustainable development in accordance with the policies in the Framework." (B2, Tab 4, page 531)

10. When considering Ground 3 of the Claim it will be necessary to consider the Environmental Assessment of Plans and Programmes Regulations 2004 ("the 2004 Regulations"). Ground 3 is a distinct Ground and I consider it more convenient to set out the relevant 2004 Regulations when I come to consider that Ground in detail below.

Nation Planning Policies

The relevant national Planning policies are found in the NPPF. For ease of reference, in this Judgment I shall refer to Paragraphs of the NPPF simply by NPPF followed by the relevant paragraph number, for example NPPF 22. The parties agree that the following are the relevant policies for the purposes of these proceedings:

i) Planning policies should avoid the long term protection of sites allocated for employment use where there is no reasonable prospect of a site being used for that purpose. Land allocations should be regularly reviewed. Where there is no reasonable prospect of a site being used for the allocated employment use, applications for alternative uses of land or buildings should be treated on their merits having regard to market signals and the relative need for different land uses to support sustainable local communities. NPPF 22 (B2, Tab 4, page 495)

ii) Transport policies have an important role to play in facilitating sustainable development…the transport system needs to be balanced in favour of sustainable transport modes, giving people a real choice about how they travel. NPPF 29 (B2, Tab 4, page 497)

iii) Local planning authorities … should develop strategies for the provision of viable transport infrastructure necessary to support sustainable development, including large scale facilities. NPPF 31 (B2, Tab 4, page 497)

iv) Local planning authorities should identify and protect, where there is robust evidence, sites and routes which could be critical in developing infrastructure to widen transport choice. NPPF 41 (B2, Tab 4, page 499)

v) In preparing local plans local planning authorities should … safeguard…. existing, planned and potential rail heads, rail links to quarries, wharfage and associated storage, handling and processing facilities for the bulk transport by rail, sea or inland waterways of minerals, including recycled, secondary and marine dredged minerals;….. NPPF 143 (B2, Tab 4, page 520-521)

vi) Local plans should plan positively for the development and infrastructure required in the area to meet the objectives, principles and policies of the NPPF and should be drawn up over an appropriate time scale, preferably a 15 year time horizon, take account of longer term requirements, and be kept up to date. NPPF 157 (B2, Tab 4, page 526)

vii) Local plans must be based on adequate, up to date and relevant evidence about the economic, social and environmental characteristics and prospects of the area. NPPF 158 (B2, Tab 4, page 526)

viii) Pursuing sustainable development requires careful attention to viability and costs in plan-making and decision-taking. Plans should be deliverable. NPPF 173 (B2, Tab 4, page 529)

ix) The local planning authority should ensure that there is a reasonable prospect that planned infrastructure is deliverable in a timely fashion. NPPF 177 (B2, Tab 4, page 530)

x) The development plan documents should be sound in accordance with the guidance in NPPF 182. (See full text set out above, in Paragraph 9 of this Judgment)

Propositions of Law

11. The following propositions of law are agreed between Counsel. The Inspector at a Development Plan Document examination is under a statutory duty to have regard to national planning policy in Section 19(2) of the 2004 Act and to do so as a matter of policy when considering "soundness" as a result of NPPF 182. In order to have regard to a policy the Inspector must have interpreted it properly. If the body making the decision fails properly to understand the policy then the decision is as defective as if no regard has been had to the policy: see Gransden v Secretary of State [1986] JPL 519 at 521.
12. The Guidance as to "soundness", now set out in NPPF is not prescriptive: per Carnwath LJ in Barratt Developments Plc v The City of Wakefield MDC [2010] EWCA Civ 897 at paragraph 11

"Provided authorities and Inspectors reach a conclusion which is not irrational (meaning perverse) their decision cannot be questioned in the Courts. The mere fact that they have not followed the policy guidance in every respect does not make a conclusion unlawful"

And at paragraph 33:

""Soundness" was a matter to be judged by the Inspector and the Council and raises no issue of law, unless their decision is shown to have been "irrational", or they are shown to have ignored the relevant guidance or other considerations which were necessarily material in law."

13. The interpretation of policy within a development plan document is a matter of law. Planning Policy is to be interpreted objectively in accordance with the language used, read as always in its proper context: per Lord Reed in Tesco Stores Ltd v Dundee City Council [2012] 2 P. & C. R. at paragraph 18.
14. The requirement to have regard to national planning policy in section 19(2) of the 2004 Act and the policy requirement in NPPF 182 does not mean that an Inspector has to adhere slavishly to national planning policy. However, if an Inspector chooses to depart from the policy when determining whether a development plan document is sound, he must give clear reasons for doing so in order that the recipient of his decision would know why the decision was being made as an exception to the policy: see Gransden v Secretary of State [1986] JPL 519 at page 521 and Horsham DC v Secretary of State [1992] 1 PLR 81 at 88.
15. In University of Bristol v North Somerset Council [2013] EWHC 231 (Admin) the Court identified that the correct legal approach in relation to the standard of reasons in an Inspector's examination report was that summarised by Lord Brown in South Bucks District Council v Porter (No.2) [2004] 1 WLR 1953 at paragraph 36, namely:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

16. A review of the adequacy of environmental documents, such as a sustainability appraisal is also on conventional Wednesbury grounds, and simply because a document does not contain all the information required does not mean that there has been an error of law. Per Beatson J in Shadwell Estates Ltd v Breckland DC and Another [2013] EWHC 12 Admin, at paragraphs 71 – 78.

The Factual Background

17. Under the Local Development Framework introduced by the 2004 Act, local planning authorities have to produce a local development plan. Such plans comprise a number of different documents referred to as development plan documents ("DPDs"). The NRWLP is one such document. Both sites in this case are also within the area covered by the Aire Valley Area Action Plan ("AVAAP") which also forms part of the local development framework. As its name suggests, the NRWLP is directed to minerals, waste, energy, water, air quality and land. It also covers the movement of minerals by rail and water, as well as other forms of freight. As Mr Hobson put it, the NRWLP is a thematic plan.
18. I have the benefit of a Witness Statement from Maxwell Rathmell who is employed by LCC as Minerals, Waste and Contaminated Land Manager. At paragraphs 2.3 - 2.7 of his Witness Statement, Mr Rathmell sets out the importance of wharves and rail sidings, in particular the potential of freight movement by water or rail removing large numbers of HGV trips from the highway. He points to the fact that for many years Government grants have encouraged the switch from road to rail and canal. The problem for canal freight is the paucity of locations to load and unload a barge and that only large navigations can in practical terms carry large amounts of freight. The Aire and Calder navigation has the potential to carry large barges. There is also the potential to transfer some waste by rail and canal. Leeds is a large and complex metropolitan area with relatively few opportunities to safeguard wharves and rail sidings in situ. The NRWLP identifies 8 sites for safeguarding or allocation as wharves or rail sidings, including the Claimants' sites (B2, pages 365 -366). Mr Hobson reminded me that under NPPF 143 local planning authorities should … safeguard…. existing, planned and potential rail heads, rail links to quarries, wharfage and associated storage, handling and processing facilities for the bulk transport by rail, sea or inland waterways of minerals.
19. The draft NRWLP was published in November 2010 and included a policy referred to as "Minerals [13]: Transport Modes" which provided that

"2. Existing rail sidings and wharves are safeguarded to protect them from other development that would prejudice their long terms availability for rail or canal freight. These sites are shown as Maps B2 in the map book.

3. The site at Skelton Grange Road, Stourton is suitable for provision of a new canal wharf and the site at Bridgewater Road South is suitable for provision of new rail sidings. These sites are shown as Maps XB2 in the map book. These sites are allocated for employment activities which can utilise movements of freight by rail or canal…" (B1, Tab 3, page 27)

20. In his Witness Statement Mr Rathmell explains the background to the Claimants' sites and their treatment in the NRWLP. The Bridgwater Road site was included in the NRWLP as a site allocated as suitable for the provision of new rail sidings. As I understand the position, there is no dispute that before submission to the Secretary of State, this allocation was amended to indicate that the site "may be suitable for a canal wharf". This was apparently altered in response to a suggestion from British Waterways. The site was allocated as it had existing rail use for the import of aggregate from the Yorkshire Dales and a siding on the other side of the track used by Tarmac. On the south side of the track is an asphalt plant operated by Hansons, which is part of Heidelberg Cement. There used to be a rail siding to this location. (B2, page 367, paragraph 2.10.) The site has a canal frontage but no history of canal use and the canal side would need to be developed for canal use. (B2, page 367, paragraph 2.12.)
21. The Haigh Park Road site was safeguarded due to the presence of three historic wharves, evidence of a successful trial shipment of steel unloaded at the wharves in 2008 and its well placed location to the principal industrial and commercial area of Leeds. (B2, page 366 -367, paragraph 2.9.)
22. Both Claimants objected through professional agents to the proposed designation of their respective sites. Schenker objected indicating that its site should be allocated for mixed use/employment/housing with the allocation dealt with through the Site Allocations Development Plan Document. (Bundle 1, Tab 4, page 27, paragraph 4.4) A number of grounds of objection were raised by Schenker including the lack of any viability appraisal: "Quite simply there is not sufficient market for minerals/waste, let alone to proscribe only those waste facilities which can utilise movements of freight by rail or canal" (B1, Tab 4, page 25, paragraph 3.7). They also sought an explanation for the policy change in that their land was currently allocated under the UDP as a housing site (B1, Tab 4, page 25, paragraphs 3.8 and 3.9)
23. Towngate objected indicating that they wished to pursue a housing allocation under the AVAAP and on the basis that "There does not appear to be any evidence to support the designation of the site in terms of viability studies .." and "No evidence has been provided to demonstrate that there are sufficient prospects of significant freight transportation by waterways to justify the safeguarding of [the Haigh Park Road site] in this manner". (B1, Tab 5, pages 29-30). They too sought explanation for the change in policy, the site having previously been designated for housing. (B1, Tab 5, page 29)
24. Following submission of the NRWLP to the Inspector, similar representations were made to the Inspector by the Claimants. Hearing sessions for the Inspector's examination took place in November 2011, with a rounding off session in early December 2011. In May 2012 LCC issued a document entitled Post Submission Schedule of Changes and invited consultation on the proposed changes. Of relevance to these proceedings were the following proposed changes: the insertion of a new paragraph [3.36] relating to MINERALS [13] and the insertion of a new paragraph [3.37] and a new Policy MINERALS [14].
25. These changes were ultimately adopted in the NRWLP and are the focus of the first 2 grounds of challenge in this case. Accordingly the relevant policy paragraphs together with the explanatory paragraphs need to be set out in full:

"MINERALS 13: TRANSPORT MODES

1. The Council supports in principle the creation of new sites for the development of non road infrastructure associated with natural resource and waste facilities.

2. Existing rail sidings and wharves are safeguarded to protect them from other development that would prejudice their long term availability for rail or canal freight. These sites are shown on the Policies Map.

3. … the site at Bridgewater Road South is suitable for the provision of new rail sidings and may be suitable for a canal wharf. These sites are shown on the Policies Map. These sites are allocated for employment activities which can utilise movements of freight by rail or canal. Temporary uses which do not utilise rail or canal freight will also be accepted providing they do not prejudice the long term use of rail or canal for freight…

3.36 There are limited opportunities for rail and wharf facilities in Leeds and it is important that the sites identified in this plan have every opportunity to develop and flourish for these uses. Nevertheless the Council recognises that land should not be sterilised indefinitely if there is no reasonable prospect of the sites being used for such purposes. It is therefore necessary to strike a balance between the policy objectives and achieving effective, efficient and sustainable use of land. To this end the Council will therefore undertake a review of the policy as part of its Annual Monitoring Report in the first such Report prepared after a period of 5 yrs from the date of adoption. Given that there are only limited opportunities available it should not be assumed that lack of interest in the preceding 5 years will automatically result in the removal of the safeguarding policy from any or all of the sites in question. The Report will need to consider a range of issues including how circumstances have changed since adoption and forecasts of how the economy might change in the light of sustainability issues. This will include the issue of viability and in this respect the redevelopment of safeguarded or proposed wharves/ rail sidings for other land uses will only be considered where it can be demonstrated that the wharf / rail siding is not likely to become viable or capable of being made viable for freight handling, or in the case of safeguarded wharves/ rail sidings where an adequate replacement wharf/ rail siding has been provided.

The following factors will be taken into account when considering viability:

• site size, shape, navigational access, road access, rail access (where possible), planning history, environmental impact and surrounding land use context, including existing uses, extant planning permissions and development plan allocations;

• geographical location, in terms of proximity and connections to existing and potential market areas and other freight-handling sites;

• the existing and potential contribution the site can make towards reducing road based freight movements;

• Demand for the use of the site for waterborne/ rail-based freight having regard to marketing and other evidence".

3.37 Applications for alternative uses on a safeguarded or allocated wharf or rail siding will be considered in terms of their benefits weighed against the loss of the non-road freight opportunity using the following criteria based policy.

MINERALS 14: CRITERIA FOR ASSESSING ALTERNATIVE DEVELOPMENT ON PROTECTED WHARVES AND RAIL SIDINGS

Canal wharves and rail sidings are protected from other development unless the applicant can demonstrate compliance with the following criteria:

1. The development would not sterilise the longer term potential of the site for wharf or rail siding use, or

2. The applicant is able to demonstrate that in the case of a safeguarded wharf/rail siding that an adequate replacement wharf/rail siding has been provided or

3. The applicant is able to demonstrate that there are no suitable alternative sites for the proposed development, and

4. A sufficient supply of sites will remain in the district, readily available and of at least the same functional capability (including proximity to relevant economic centres), so as not to prejudice the objective of encouraging a shift from road freight, and

5. The applicant is able to conclusively demonstrate, including current and forecasted marketing evidence, that the site is unlikely to ever be appropriate for use as a freight interchange."

26. The Inspector issued his report of the NRWLP on 7 December 2012. At Paragraph 7 he stated as follows:

"My report only deals with the additional Significant Changes (now known as Main Modifications) that are needed to make the Plan sound and legally compliant and they are identified in bold in the report (MM). In accordance with section 20(7C) of the 2004 Act LCC requested that I should make any modifications needed to rectify matters that make the Plan unsound/not legally compliant and thus incapable of being adopted. All of the necessary changes have been proposed by LCC and are presented in Appendix A." (B1, Tab 20, page 227)

27. In relation to Policy MINERALS [13] the Inspector found that there was robust evidence to support protection and reservation of the rail sidings and adjacent sites but that "….despite the wealth of independent support, there is little direct evidence to prove that the movement of minerals and other heavy or bulky materials to and from Leeds by canal is economically sound." (B1, Tab 20, page 242, paragraph 83)
28. The content of paragraphs 85 -87 of the Inspector's report (B1, Tab 20, page 242 -243) are at the heart of the challenge in Grounds 1 and 2 and are here set out in full (excluding the references to the appendixes):

"85. In the circumstances, whilst the protection and development of wharves is a laudable aspiration, supported in principle by national and local policy, the long term protection of the canal-side sites affected by Policy Minerals [13]: Transport Modes and the prevention of other permanent development on these sites is not justified by the current evidence base. It is also not compliant with paragraph 22 of the Framework, which seeks to avoid the long term protection of sites where there is no reasonable prospect of them being used for the protected purpose. A proposed marketing study by the Commercial Boat Operators Association should throw some light on this dilemma.

86. In the meantime LCC has proposed a new paragraph ([3.36]) that recognises that land should not be sterilised indefinitely, despite the limited opportunities for rail and wharf facilities within Leeds. It also commits LCC to a review of the policy as a part of its Annual Monitoring Report in the first such report to be prepared after a period of five years from the date of the plan's adoption.

"87. LCC has also recognised that in any event, there needs to be a mechanism by which proposals to use the safeguarded sites for other uses can be objectively assessed. The inclusion of an additional Policy (Minerals [14]) and a paragraph in the supporting text to the policy ([3.37]) removes this deficiency. The policy includes a set of criteria by which proposals for non-canal or non-rail related development can be assessed. Following the introduction of these changes I find Policy Minerals [13] to be sound."

29. On 16 January 2013 LCC adopted the NRWLP with the modifications endorsed by the Inspector.

The Grounds of Claim

30. There are 3 grounds of Claim which can be broadly summarised as follows:

i) The policies in MINERALS 13 and MINERALS 14 are in conflict with NPPF 22 which seeks to avoid the long term protection of sites where there is no reasonable prospect of them being used for the protected purpose; further that the Inspector has failed to provide any or any adequate reasons as to why MINERALS 13 and MINERALS 14 as modified are sound given that the policies could result in sites being retained as safeguarded even where there is no reasonable prospect of them being used for the safeguarded purpose purpose.

ii) The policy MINERALS 14 safeguards the sites despite there being an absence of evidence that they are deliverable for their protected purpose. Mr Taylor formally conceded that there is robust evidence in relation to rail freight use and that this ground of challenge is limited to canal freight use. Again there is a challenge to the adequacy of the Inspector's reasons on this aspect.

iii) The environmental report (also referred to as the sustainability assessment ("SA")) prepared in connection with the policies is not in accordance with the 2004 Regulations as it does not consider the other reasonable alternative uses to which the sites may be put, and that accordingly the adoption of the plan by LCC was in breach of the 2004 regulations.

Ground 1: Conflict with NPPF 22

31. As is clear from the extracts set out above, in his Report the Inspector concluded that MINERALS [13] was not justified by the evidence base in relation to the safeguarding of wharves since it failed to meet the requirement for robust evidence in NPPF 41. He concluded that, in so far as it concerned the protection of canal side sites, MINERALS [13] was not compliant with NPPF 22 which seeks to avoid the long term protection of sites where there is no reasonable prospect of them being used for their protected purpose.
32. The Inspector then considered LCC's proposals to resolve those difficulties: Paragraph [3.36] and Policy MINERALS [14]. In relation to Paragraph [3.36], the Inspector describes that paragraph as recognising that land should not be sterilised indefinitely, despite the limited opportunities for rail and wharf facilities in Leeds. He notes it also commits LCC to a review of the policy as part of its Annual Monitoring Report in the first such report to be prepared after a period of 5 years from the date of the plan's adoption. In relation to MINERALS [14] he describes LCC as recognising that in any event, there needs to be a mechanism by which the proposals to safeguard sites for other uses can be objectively assessed. He describes the introduction of MINERALS [14] as removing this deficiency. He then states "Following the introduction of these changes I find Policy Minerals [13] to be sound.
33. Mr Taylor, for the Claimants, submitted that it is clear that the Inspector concluded that it was the introduction of both amendments together, (Paragraph [3.36] and MINERALS [14]) that made MINERALS [13] sound. He submitted, therefore, that if there is an error of law in respect of MINERALS [14], the Inspector's conclusions on the soundness of MINERALS [13] would be similarly flawed. He submitted that MINERALS [14] is contrary to NPPF 22, is flawed by error of law and that it follows that MINERALS [13] is similarly flawed.
34. Mr Taylor reminded me that under NPPF 182 a sound local plan should be consistent with national policy. He submitted that MINERALS 14 contains 3 ways in which a site might be used for an alternative use. The last of the 3 relates to circumstances where there is no prospect of the site being used for the safeguarded purpose, and all 3 criteria, namely items 3, 4 and 5 of MINERALS 14 (see paragraph 25 above) must be satisfied before a site will be released from its safeguarded use. Mr Taylor pointed out that if criterion number 5 is satisfied, then it will have been established that "the site is unlikely to ever be appropriate for use as a freight interchange". In other words, he submitted, it will have been established that there is no reasonable prospect of it being used for its protected purpose, such that in order to comply with NPPF 22, it should not be afforded long term protection.
35. However, MINERALS 14 requires 2 other criteria to be met (items 3 and 4), and if either is not satisfied, the effect of the Policy is that such a site will remain safeguarded for a use for which there is no reasonable prospect of it ever being used, and alternative uses will be precluded. Mr Taylor illustrated this by two examples. The first was a site where it is established that there was no prospect of the safeguarded use on a site coming forward and a commercial use is proposed. If there are plenty of available alternative sites for that commercial use, criterion 3 could not be fulfilled but the site would remain allocated as a safeguarded wharf even though there is no prospect of it ever being put into such a use.
36. His second example was a site where it is established that there was no prospect of the safeguarded use on a site coming forward but a lack of sufficient wharf sites in Leeds is established. In this case, criterion 4 could not be fulfilled, but again the site would remain allocated as a safeguarded wharf even though there is no prospect of it ever being put into such a use.
37. Mr Taylor submitted that in these examples the result is that land is safeguarded for a use which will not come forward. That, he submits, is plainly in conflict with NPPF 22 and yet the Inspector concluded its contents were consistent with para NPPF 22. Mr Taylor submitted this amounts to an error of law on a number of bases:

i) that it is irrational/perverse;

ii) that the Inspector failed to have regard to a material consideration, namely that the NRWLP as modified has the effect that sites which may be established to have no reasonable prospect of being used for their safeguarded purpose would be retained as safeguarded for that purpose and thus sterilised from coming forward for economic development during the period of the Plan (i.e. up to 2028).

iii) There is a failure to give adequate reasons.

38. So far as the suggestion in point (ii) in Paragraph 37 above that land might be sterilised up to 2028 is concerned, Mr Taylor submitted that proposition could be tested by 3 examples. He said that if in the period from now to the 5 year review an applicant for planning permission establishes that there is no reasonable prospect of rail/wharf use, but there is an alternative site within Leeds for the proposed development, the application would be contrary to MINERALS 14, but NPPF 22 says it should not be. His second example was based on the proposition that after the 5 year review LCC concluded that the site was likely to come forward for the safeguarded use. He submitted that the same hypothetical applicant as in his first example, applying for planning permission after the review, would be in exactly the same position. His third example was based on the proposition that after the 5 year review LCC concluded that the site was unlikely to come forward for the safeguarded use. He submitted that the same hypothetical applicant as in his first example, applying for planning permission after the review, would be in exactly the same position and the application would remain contrary to Policy MINERALS 14, notwithstanding both the applicant and LCC would recognise the site was unlikely to come forward for the proposed use.
39. So far as the failure to give adequate reasons is concerned, Mr Taylor submitted that all 3 examples show the site not coming forward for the safeguarded use but the policy still safeguarding it for that use. He submitted there is nothing in the Inspector's reasoning to explain how he concluded MINERALS 14 is consistent NPPF 22, despite the issue being raised expressly in Schenker's representations on the proposed modifications (B1, Tab 17, page 197 -198, paragraph 2.3) where it was stated that all the subparagraphs in MINERALS [14] should be in the alternative and an example given to demonstrate why. Mr Taylor submitted that the Inspector has not grappled with this in his reasons. He has not addressed the fact that MINERALS 14 can apply so as not to release a site even where there is no reasonable prospect of the site coming forward for the safeguarded use. He submitted that the conclusion that MINERALS 14 is sound must be wrong in law. That being so, he further submitted that MINERALS 13 is flawed because the Inspector considered that it was both policies together that rescued the NRWLP from being otherwise unsound.
40. Mr Hobson, for the Defendant, did not address MINERALS 14 in any detail. He submitted that MINERALS 14 was included, not for the purpose of compliance with NPPF 22, but to provide a mechanism which enabled safeguarded sites to be assessed at any stage. He submitted that it was MINERALS 13, with the review in Paragraph 3.36, that rescued the non compliance with NPPF 22 and made the policy sound. He submitted that the Claimants' focus on MINERALS 14 misses the point that the review is the operative provision that rescues the sterilisation of the land.
41. I shall plainly have to consider whether the Policies stand or fall together. Before doing so I consider it appropriate to deal with the issue of whether MINERALS 14 was wrong in law and properly challenged under Section 113 of the 2004 Act. I accept Mr Taylor's submissions in relation to Policy MINERALS 14. I am satisfied that MINERALS 14 is properly challenged on grounds of it being irrational/perverse; that the Inspector failed to have regard to the material consideration that land could remain safeguarded by MINERALS 14 even in circumstances where it was established to have no reasonable prospect of being used for the safeguarded purpose; and that there is no adequate reasoning in the Inspector's report addressing these issues. I am further satisfied that MINERALS 14 is unlawful in relation to both rail freight uses and canal freight uses. The policy is plainly addressed to uses of the sites in question at any time during the life of the NRWLP and the examples put forward by Mr Taylor to support his arguments are equally applicable whether the land in question is allocated for rail use or safeguarded for wharf use.
42. The fact that Mr Hobson chose not to address the detail of MINERALS 14 was plainly no oversight on his part. I suspect he knew full well he would struggle to try to justify MINERALS 14. The real issue in this case, in commercial terms for the Claimants, is the impact of MINERALS 13 which is the policy which allocates or safeguards their respective sites. Mr Taylor submitted MINERALS 13 must fall with MINERALS 14. He submitted they must fall together given the Inspector's conclusion that it was the changes together which rendered MINERALS 13 sound (Inspector's report, paragraph 87: B1, Tab 20, page 243.)
43. Mr Hobson's case, as already indicated, is that MINERALS 14 is wholly separate from MINERALS 13; that MINERALS 14 was included to provide a mechanism which enabled safeguarded sites to be assessed at any stage; and that MINERALS 13 was rescued from otherwise being unsound by the inclusion of the 5 year review. He reminded me that NPPF 22 states that land allocations should be regularly reviewed (B2, Tab 4, page 495).
44. Mr Hobson submitted that the Inspector was under a duty to identify means of making the NRWLP sound and that his conclusion can only be challenged on the very limited grounds set out by Carnwarth LJ in Barratt Developments Plc v The City of Wakefield MDC [2010] EWCA Civ 897 (set out in paragraph 12 above). He pointed out that the Inspector found that there was robust evidence in relation to rail freight use and that it was the situation in relation to canal freight use and long term protection of those sites which was not justified and was not in compliance with NPPF 22. In my judgment that is plainly the correct reading of paragraph 85 of the Inspector's decision. The Inspector goes on in paragraph 86 to state that the new paragraph [3.36] has been proposed because LCC recognises that land should not be sterilised indefinitely. Thus Mr Hobson submits that it was the inclusion of paragraph [3.36] which addressed the issue of the long term sterilisation of canal wharf land by reason of the introduction of the review after 5 years.
45. Mr Hobson submitted that there is no prejudice to the Claimants. He pointed to the commitment in paragraph [3.36] to carry out the review. He submitted that if LCC fails to carry out the review, its position in seeking to rely on the policy thereafter would be untenable, and LCC would be unable to support any decision it made in reliance on a policy which has not been reviewed, and could properly expect to lose any planning appeal with costs awarded against it. He further submitted that if on the review, LCC agrees with the Claimants that there is no prospect of the sites being used for the safeguarded/allocated uses, then LCC could not rely on the policy and could not sustain any objection based on MINERALS 13.
46. Mr Hobson further submitted that the Inspector reached a perfectly clear conclusion that the protection of the sites for a 5 year period is a reasonable period for the sites' protection in the light of the guidance which says it should not be indefinite or long term. This he submitted was entirely a matter for the Inspector's judgment and properly within his remit. He submitted it was not an irrational decision to reach and that the Inspector's reasoning for accepting that this made the NRWLP, as modified, compliant with national policy is clear and adequate, and not a decision the Court can properly interfere with.
47. During his submissions Mr Hobson submitted that the 5 year review was introduced at the request of the Inspector so as to avoid unnecessary long term sterilisation of sites, whereas MINERALS 14 was introduced at the suggestion of British Waterways. This is based on the evidence of Mr Rathmell (B2, page 372, paragraphs 3.17 and 3.20). Mr Taylor disputed that the 5 year review was at the Inspector's request, or that it was introduced to meet concerns as to consistency with NPPF 22. He referred me to LCC's response to the Issues and Questions for the Examination Document issued by the Inspector in October 2011. The Inspector's document is at B1, Tab 8. LCC's reply is at B1, Tab 9. In the Section dealing with the Inspector's Question "Is it appropriate to safeguard [named sites including the Claimants'] for long term canal or rail freight use?", LCC's reply addresses the individual sites and suggests a 5 yearly review as an adequate period by which to review canal and rail provision in this DPD. (B1, Tab 9, pages 65 - 68). It does appear, therefore, that the 5 year review was LCC's suggestion in the first instance. Nevertheless, the Inspector plainly took it up as part of his decision making process.
48. Mr Taylor's primary submission is that focussing solely on the review point to address the NPPF 22 point is misconceived on a fair reading of the Inspector's report, a matter I shall come back to. He further submits that in any event, the review does not secure consistency with NPPF 22 for three reasons:

i) There is no guarantee or binding commitment enforceable by the Claimants that a Review will in fact be conducted on a 5 year timescale or at all.

ii) Secondly, even if conducted, the review will apply the criteria set out in MINERALS 14.

iii) There is no commitment to promote a new DPD even if the review concluded that there was no longer the need to safeguard and/or allocate the sites.

His principal point is that if no review is undertaken, then on any application for planning permission, MINERALS 13 and 14 would remain in place and would have to be applied (subject to any Orders I might make in these proceedings).

49. Mr Taylor also submitted that the interpretation of the Inspector's reasons suggested by Mr Hobson cannot be properly sustained when looking at the Inspector's decision. Mr Taylor submitted that the Inspector's reasons must be looked at as a whole. Whilst the Inspector was plainly saying there was not sufficient evidence to protect wharves in the long term, LCC are contending that his decision must be interpreted as having concluded that there was sufficient evidence to protect them in the short term, namely up to the 5 year review. Mr Taylor referred me to paragraphs 83 and 85 of the Inspector's Report where he was looking at whether there was evidence that the movement of goods by canal was economically sound, in other words, he submitted, at the very question of viability and the deliverability of movement of goods by canal. Mr Taylor reminded me that NPPF 182 requires the plan to be deliverable, something the Inspector plainly had in mind in paragraphs 83 and 85 of his Report. At paragraph 83 the Inspector concludes that "…. despite the wealth of independent support, there is little direct evidence to prove that the movement of minerals and other heavy or bulky materials to and from Leeds by canal is economically sound." (B1, Tab 20, page 242).
50. Mr Taylor submitted that if there was insufficient evidence to conclude that it was economically sound in the long term, there was nothing from which the Inspector could inferentially conclude that it was economically sound in the short term. He submitted reliance by Mr Hobson on paragraphs 91 and 93 of the Inspector's report do not assist as those paragraphs do not go to the question of deliverability.
51. I accept Mr Taylor's submissions in this respect. In my Judgment, there is nothing on the face of his Report which could justify the inferential conclusion contended for by Mr Hobson that the Inspector must have decided that a 5 year period of protection was justified, notwithstanding there being no robust evidence sufficient to support safeguarding the wharves and prevention of other permanent development on the canal wharf sites. What Mr Hobson's submission amounts to, in my judgment, is that the Inspector, recognising there was some evidence of canal freight movement and being appraised of further studies into the issue, wished to create the opportunity to protect the sites for 5 years to allow further evidence to be considered if it were forthcoming. As Mr Taylor put it, that is putting the cart before the horse. That amounts to safeguarding the wharf sites from development in case evidence comes forward, rather than safeguarding the site from development because the relevant evidence is available to support such safeguarding. Such an approach in my judgment is contrary to NPPF 41 and the need for robust evidence when protecting sites and routes which could be considered critical in developing infrastructure to widen transport choice.
52. If that was the Inspector's conclusion, which in my judgement is not supported by the Report, I reject the contention that it was a conclusion which he was entitled to reach on the basis of the evidence before him. It formed no part of LCC's submissions to the Inspector, or of the Inspector's report, that the NRWLP exceptionally departed from national policy in this respect, with supporting reasons. Mr Taylor accepted that exceptions supported by proper reasons are permissible, but he submitted that was not the approach here. I reject Mr Hobson's contention that the Inspector's reasoning for accepting the 5 year review is clear and adequate. On the contrary, in my Judgment it is wholly unexplained save to say that the introduction of the 5year review in paragraph [3.36] and MINERALS [14] as modifications render MINERALS [13] sound. That fails to grapple with the very issues raised in this case and which were raised in submissions to the Inspector. Accordingly, I find that the Inspector erred as a matter of law in reaching his conclusion as to "soundness" and failed properly to take into account NPPF 22. It follows that MINERALS 13 and paragraph 3.36 are not properly adopted by LCC in so far as they relate to safeguarded wharves and the possible wharf use on the Bridgwater Road Site.
53. That leads me to the outstanding question under Ground 1 as to whether MINERALS 13 and 14 fall together, as submitted by Mr Taylor, or whether they should be looked at in isolation as suggested by Mr Hobson. This is not academic given my findings in paragraph 52 above that MINERALS 13 and Paragraph 3.36, when considered in isolation, are unlawful insofar as they relate only to safeguarded wharves/allocation for future wharf use.
54. The critical paragraph in the Inspector's report is Paragraph 87. In my judgment, on a fair reading of that paragraph in its context, the only proper conclusion is that the Inspector concluded that it was both modifications, (paragraph [3.36] and Minerals [14]) which informed his conclusion that MINERALS [13] was made sound. Mr Taylor submitted that NPPF 22 would require both aspects to be considered together in any event and that Mr Hobson's submissions focussing on the 5 year review in isolation sought to rely on the first 2 sentences of NPPF 22 and to ignore the rest of the paragraph. NPPF 22 read as a whole clearly covers both the need to prevent long term protection of sites where there is no reasonable prospect of the allocated use coming forwards and the need for applications for alternative uses to be assessed where there is no reasonable prospect of the allocated use coming forward. In those circumstances, in my judgement, it is unsurprising that the Inspector looked at the two modifications together when considering whether the modifications made MINERALS 13 sound. I accept Mr Taylor's broader submission that the flawed nature of MINERALS 14 is such that it necessarily follows that the Inspector's judgment on soundness for Policy MINERALS 13 is flawed as a whole. He considered the 2 modifications together and distinctions between canal and rail freight use do not arise when the matter is approached on this basis.
55. Accordingly Ground 1 is made out in respect of Policies MINERALS 13 and 14 in their entirety in respect of each Claimant's land.

GROUND 2: Safeguarding sites in MINERALS 13 in the absence of evidence that they are deliverable.

56. This can be dealt with very shortly as the issue here overlaps with the evidential issues in Ground 1. As stated above, Mr Taylor formally conceded that there is robust evidence in relation to rail freight use and that this ground of challenge is limited to canal freight use. So far as canal freight use is concerned, Mr Hobson submitted that whilst the Inspector found there was "little direct evidence to prove that the movement of heavy or bulky materials would be economically sound", there was nevertheless some evidence before him of canal freight usage. He pointed to the following evidence which was before the Inspector: that the Haigh Park Road site had been used by ASD Metals for a trial period in 2008 and they wished to continue to use it [B2, Tab 16, page 750]; and that Humber Barges were in discussions regarding the movement of steel by barge [B2, Tab 15, page 748-79]. Mr Hobson pointed out that the Inspector referred to a marketing study being undertaken by the Commercial Boat Owners Association, and to specific characteristics of the Claimant's sites. He submitted that in all the circumstances the Inspector was entitled to conclude that it was reasonable for the safeguarding under MINERALS 13 to remain in place for a period of 5 years pending a review in accordance with paragraph 3.36 of the NRWLP.
57. For the reasons already given in relation to Ground 1 above, I reject Mr Hobson's submission. As the Inspector himself recognised, there was little direct evidence that the canal wharf usage was deliverable. In my judgement the construction of the Inspector's conclusions argued for by Mr Hobson is unsustainable for the reasons set out in paragraphs 51 and 52 above.
58. Accordingly I find that Ground 2 is made out to the extent that it relates to canal wharves and canal usage.

Ground 3: Failure to consider alternative uses

59. The Claimants case in Ground 3 is that the Sustainability Appraisal (SA) prepared in connection with the NRWLP is not in accordance with the 2004 Regulations as it does not consider other reasonable alternatives uses to which each of the Claimant's sites could be put.
60. Regulation 5 of the 2004 Regulations provides that where the first formal preparatory act of a plan is on or after 21 July 2004 an environmental assessment in accordance with Part 3 of the Regulations must be carried out. By Regulation 12 of the 2004 Regulations, where an environmental assessment is required, an environmental report must be prepared, and by Regulation 13, the environmental report must be the subject of public consultation. There is no dispute that these requirements apply to the NRWLP.
61. Regulation 8(2) and (3) of the 2004 Regulations preclude adoption of a plan for which an environmental assessment is required without taking into account the environmental report prepared in accordance with Part 3 of the Regulations.
62. Regulation 12(2) of the 2004 Regulations provides that the environmental report "….shall identify, describe and evaluate the likely significant effects on the environment of implementing the plan or programme and reasonable alternatives taking into account the objectives and geographical scope of the plan or programme."
63. For the purposes of the NRWLP, the environmental report is conducted by the production and publication of a SA as required by Section 19(5) of the 2004 Act. Section 19(5) requires an SA for each DPD (See paragraph 7 above). Mr Taylor submitted that a SA which does not identify describe and evaluate the reasonable alternatives is not an environmental report for the purposes of Part 3 of the Regulations. He further submitted that to adopt a plan when the environmental report is not compliant with Regulation 12 results in a breach of Regulations 8(2) of the 2004 Regulations and is unlawful.
64. Mr Taylor's case under Ground 3 is that the SA (and its two addenda) conducted for the NRWLP fails to appraise the use of the Claimants respective sites for any other purpose, in particular for housing or other commercial purposes. He further submits that it is defective in failing to consider the option of "doing nothing", in other words not safeguarding the sites at all. He submits, therefore, that the adoption of the NRWLP was in breach of the 2004 Regulations, and that it should be quashed.
65. Mr Taylor referred me to the judgment of Ouseley J in Heard v Broadland DC [2012] Env. L.R. 23 at paragraph 69 in which he described the purpose of the appraisal process as follows :

"…an outline of reasons for the selection of alternatives for examination is required, and alternatives have to be assessed, whether or not to the same degree as the preferred option, all for the purpose of carrying out, with public participation, a reasoned evaluative process of the environmental impact of plans or proposals." "

66. Mr Hobson submitted that the NRWLP was the subject of a comprehensive SA which the Inspector noted as meeting the statutory requirements. He submitted that the consideration of alternative uses for the 2 sites was comprehensively assessed in the AVAAP which was being produced concurrently with the NRWLP as part of the suite of DPDs that would together comprise LCC's Local Development Framework. He reminded me that Regulation 12 (2) requires the consideration of reasonable alternatives "….taking into account the objectives and geographical scope of the plan or programme". He further submitted that the NRWLP is a thematic DPD dealing with minerals and related matters and that it is not reasonable in the preparation of that thematic plan to appraise the suitability of the sites for residential purposes. In the context of the thematic plan, Mr Hobson submitted that alternative uses means alternatives within the theme of the plan, that is minerals and related matters or alternative locations for those uses.
67. I have not seen the AVAAP but Mr Taylor did not challenge the assertion that housing and other alternative uses for the site were being considered in the AVAAP. Mr Hobson told me that the AVAAP rejected housing for the sites because of possible flooding amongst other reasons. That is not in evidence before me, but again was not challenged. The SA for the NRWLP repeatedly refers to the AVAAP. At page 6 of the SA other plans are identified as being likely to include actions with the potential to affect the SA objectives for the NRWLP. The AVAAP is expressly identified there. The AVAAP is repeatedly listed in the SA as one of a number of plans "acting cumulativley", and there is reference to the Area Action Plans setting out "…. a vision and policy for delivering re-generation alongside new housing, employment opportunities, and improvements in appropriate infrastructure facilities, public space and the environment" (SA, Part C, November 2010, page 15).
68. In my judgment, no one reading the SA could fail to appreciate that it was addressing limited areas of policy (Natural Resources and Waste) alongside the other DPDs referred to, including the AVAAP, which were considering the broader issues such as housing, employment opportunities etc. In those circumstances, I accept Mr Hobson's primary submission that a thematic plan such as the NRWLP does not have to consider alternatives such as housing, provided that the thematic plan forms part of a series of relevant documents, one or more of which consider the alternatives such as housing, and provided that the series of documents are considered together, or to use the SA terminology, "acting cumulativley". That is also consistent with the purpose set out in the judgment of Ousley J in Heard v Broadland DC (set out in Paragraph 65 above).
69. That is sufficient to dispose of Ground 3. However, in case I am wrong about that, and given the indications that an Appeal would be likely, I shall go on and consider the alternative submissions. There is no dispute that the SA itself does not consider housing or other commercial uses. Mr Hobson relies on the full consideration of those matters in the AVAAP. In the course of his submissions Mr Taylor submitted that any defect in the SA cannot be cured by reference to a separate report produced in relation to a separate DPD, such as the AVAAP. In response to questions from me he conceded that the local planning authority did not have to duplicate work for SAs. It would plainly be nonsensical in terms of time and expense if the planning authority had to undertake duplicate SAs because it is preparing a suite of documents. Mr Taylor submitted, however, that if the work considering alternative uses is done as part of a different SA, there needs to be an explanation of that in this DPD and an explanation as to the reason for the rejection of those alternative uses, and the adoption of the preferred approach in the AVAAP. He submitted that nowhere is that explanation provided and that it cannot be rationally concluded that the SA for the NRWLP complies with Regulation 12.
70. I find this argument wholly unattractive. Provided the reasons for the rejection of alternative uses, and the adoption of the preferred approach to site use is fully and properly explained and the document which does so is fully and properly identified in the SA for the NRWLP (and is a document freely available to consultees), the fact that the information is contained in a different document and not set out again in this SA does not, in my judgment, mean that this SA fails to consider the alternative uses. The contrary approach argued for by Mr Taylor would effectively mean either that all DPDs relating to a given area would have to contain duplicate SA material or that it is impossible, in practical terms, to have separate thematic DPDs and that everything must be in one DPD. In my judgment neither alternative is sustainable.
71. There remains the further point made by Mr Taylor that the SA fails to consider, as an alternative, the option of not safeguarding at all, a point he submitted is not considered in the AVAAP, and that was not challenged. Mr Taylor submits this is a rational alternative which ought to have been considered with reasons being given for rejecting it. Mr Hobson submitted that this is nonsense. He submitted the obligation is to consider reasonable alternatives and that doing nothing was not a reasonable alternative. He further submitted that it was implicit from the location of the sites, the lack of alternative sites, and the purposes of protection that doing nothing would simply mean losing the protection for the sites. He reminded me that NPPF 143 requires local authorities to safeguard such sites.
72. In the further alternative he submitted that if I am against him on this, the failure to consider doing nothing does not cross the threshold set out by Beatson J (as he then was) in Shadwell Estates Ltd v Breckland District Council [2013] EWHC 12 (Admin) at paragraphs 73 – 78:

"73. As to the role of the Court, review of the adequacy of environmental appraisals, assessments, and impact statements, is on conventional Wednesbury grounds….

74. What does review of environmental documents on conventional Wednesbury grounds mean in practice? The judgements of Ousley J in the Bedford & Clare case, of Sullivan J (as he then was) in R (Blewett) v Derbyshire CC [2003] EWHC 2775 (Admin) and of Weatherup J in the Northern Irish case of Seaport Investments Ltd, Re Application for Judicial review [2007] NIQB 62 illustrate the general approach of the court.

75. Ousley J …distinguished deficiencies resulting from the omission of a topic or because it has been inadequately dealt with which may have force on the planning merits and deficiencies which show that there has been an error of law or mean that the document cannot reasonably be regarded as (in that cas) an Environmental Statement. Only the latter can found an application to quash.

76. In the Blewett case Sullivan J stated that:

"41. ….In an imperfect world it is an unrealistic counsel of perfection to expect that an applicant's environmental statement will always contain the "full information" about the environmental impact of a project. The Regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting "environmental information" provides the local planning authority with as full a picture as possible. There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations…but they are few and far between."

77. He also .... deprecated the tendency of "claimants opposed to the grant of planning permission to focus on deficiencies in environmental statements, as revealed by the consultation process prescribed by the Regulations, and to contend that because the document did not contain all the information required by [the Regulations] it was therefore not an environmental statement and the local planning authority had no power to grant planning permission". He considered this to be misconceived unless, in language similar to that of Ousely J, the deficiencies are so serious that the document cannot be described as, in substance, an environmental statement for the purposes of the Regulations". Sullivan J's approach was approved by Lord Hoffman in R (Edwards) v Environment Agency [2008] UKHL 22 at [38] and [61].

78. In Seaport Investments Ltd, Re Application for Judicial review [2007] NIQB 62 Weatherup J stated…that "the responsible authority must be accorded a substantial discretionary area of judgment in relation to compliance with the required information for environmental reports". He also stated that the Court will not examine the fine detail of the contents of such a report but will seek to establish whether there has been substantial compliance with the information required. He went on to consider whether the specified matters have been addressed "rather than considering the quality of the address"."

Mr Hobson submitted that threshold is not met and that the failure to consider doing nothing does not render the SA unlawful.

73. In response Mr Taylor submitted that the Shadwell case was not a case dealing with a failure to consider reasonable alternatives, but was a case of a failure to make a judgment as to whether likely effects would arise. He submitted that this case is not dealing with an area calling for discretionary judgment. Instead, he submitted, there is a failure to comply with Regulation 12(2) and there cannot, therefore, be an environmental report within the meaning of Regulation 12. There should, he submitted be an appraisal of the sites with safeguarding and of the sites without safeguarding, and an explanation as to why safeguarding is to be preferred.
74. I am again unpersuaded by Mr Taylor's arguments in this respect. When the whole purpose of the SA and the policies was to safeguard the land for the future uses identified, is it necessary to consider as an alternative the very obvious situation that, if not safeguarded, the sites may well be lost for that purpose? I am of the view that something as self evident as that cannot properly be said to amount to an alternative use which needs to be considered in the SA.
75. Finally on this ground, even if I am wrong about the use of the AVAAP to cover housing and other uses and/or the failure to consider doing nothing not being required, I would in any event decline these Claimants any relief under Ground 3 for the following reasons. These Claimants are corporate claimants with the resources to employ lawyers to represent their interests. They had retained professional advisers (solicitors in the case of Schenker and planning consultants in the case of Towngate) who advised during the consultation process and during the Inspector's hearing session processes, and made representations on their behalf. There was never any suggestion before me that either Claimant was unaware of the conclusions in the AVAAP so far as housing matters are concerned. Indeed representatives for each sought explanation as to the change of planning designation from the previous designation for housing (see paragraphs 22 and 23 above). At no point during the process did either Claimant suggest, themselves or through professional advisers, that there was a failure to consider the alternative of doing nothing/not safeguarding. In reality these Claimants were concerned about other development uses such as housing or mixed housing and commercial. In all the circumstances I do not consider either Claimant would merit any form of discretionary relief under Ground 3.
76. In conclusion therefore I dismiss the claim on Ground 3. I allow the claim on Ground 2 only in so far as it relates to wharves on the Haigh Park Road Site and the possible wharf usage on the Bridgwater Road Site. I allow the claim on Ground 1 in full. I invite Counsel to agree an order with appropriate relief if possible, failing which I shall consider the appropriate form of relief at a further hearing for that purpose.