(1)save Historic Newmarket Ltd (Claimants) (2) Tattersalls Ltd and Others (1) Forest Heath District Council (2) Secretary of State for Communities & Local Government (Defendants) Edward Richard William Stanley, 19th Earl of Derby ("lord Derby") (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins |
| Judgment Date | 25 March 2011 |
| Neutral Citation | [2011] EWHC 606 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6882/2010 |
| Date | 25 March 2011 |
[2011] EWHC 606 (Admin)
Before: Mr Justice Collins
Case No: CO/6882/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr David Elvin, Q.C. & Mr Charles Banner (instructed by Ashurst LLP) for the Claimants
Mr Mark Lowe, Q.C. & Mr Michael Bedford (instructed by the Solicitor to the Council) for the FirstDefendant
Mr Jonathan Karas, Q.C. (instructed by Lawrence Graham) for the Interested Party
Hearing dates: 22 & 23 February 2011
Mr Justice Collins:
This claim is brought pursuant to s.113 of the Planning and Compulsory Purchase Act 2004. It seeks to quash to the extent the court considers appropriate the Forest Heath Core Strategy (FHCS) which was adopted by the first defendant on 12 May 2010. The policies in the FHCS which are under attack relate to what is described as an urban extension to the north- east of Newmarket for approximately 1200 dwellings as part of a mixed use development. That development is intended to take place over 20 years.
The claimants' main concern is that the development will have a seriously adverse effect on the horse racing industry. Newmarket is recognised as being what is described as the capital of the horse racing industry in national and international terms. Apart from the presence of the Jockey Club and Tattersalls and the National Stud, both outside and within the town limits there are many training establishments and so movements of valuable race horses inevitably clash with those of vehicles. Thus any increase in traffic generated by a development may have serious effects. Some 20% of residents are employed in the horse racing industry and any damage to it would be disastrous. This, to be fair to the Council, is recognised in the Core Strategy, but the concern of the claimants, all of whom have an interest and are persons aggrieved, is that the urban extension will have a seriously adverse effect on the industry.
Since it is and has always been recognised that the bulk of the proposed development will be on land known as Hatchfield Farm owned by the Interested Party, he applied to be and was joined in these proceedings on 15 September 2010. He supports the first defendant in resisting this claim.
Under the 2004 Act, a Development Plan comprises a Regional Spatial Strategy (RSS) and a Local Development Framework (LDF). The LDF itself has a number of components. The relevant one is the Core Strategy. This, like all LDF documents, must be in general conformity with the RSS. It is what is described as a Local Development Document (LDD) within the meaning of s.17 of the 2004 Act. By s.17(3) a local planning authority's LDDs 'must (taken as a whole) set out the authority's policies (however expressed) relating to the development and use of land in their area'. The definition of a Core Strategy and its designation as an LDD document is achieved by Regulation 6 of the Town and Country Planning (Local Development)(England) Regulations 2004 (SI 2004 No.2204).
Regulation 6(3) provides that a document of the description in Paragraph (1)(a) is to be referred to as a Core Strategy. Regulation 6(1)(a) refers to any document containing statements of –
"(i) the development and use of land which the local planning authority wish to encourage during any specified period;
(ii) objectives relating to design and access which the local planning authority wish to encourage during any specified period;
(iii) any environmental, social and economic objectives which are relevant to the attainment of the development and use of land maintained in paragraph (i);
(iv) the authority's general policies in respect of the matters referred to in paragraphs (i) to (iii) …"
As their title suggests and the definition in regulation 6(1) indicates, Core Strategies are intended to contain more general policies looking to objectives rather than site specific developments. In PPS12, which discusses local spatial planning, guidance is given in the following terms:-
"4.5. It is essential that the Core Strategy makes clear spatial choices about where developments should go in broad terms. This strong direction will mean that the work involved in the preparation of any subsequent DPDs is reduced. It is also means that decisions on planning applications can be given a clear steer immediately.
4.6. Core strategies may allocate specific sites for development. These should be those sites considered central to achievement of the strategy. Progress on the Core Strategy should not be held up by inclusion of non strategic sites."
In 4.7 the point is made that the Core Strategy looks to the long term and in general will not include site specific detail. It may be preferable for a site area to be delineated in outline rather than detailed terms and the detail can be dealt with in subsequent planning documents which do deal with the particular in the light of the general approach set out in the RSS and the Core Strategy.
The present system is due to be changed. However, until that happens, it has to be followed. Furthermore, even when the system is changed the Core Strategy will still exist as a development plan within the meaning of s.38 of the 2004 Act. S.38(6) provides that if regard is to be had to any development plan, any determination must be made in accordance with that plan unless material considerations indicate otherwise. Whatever the future holds, until amended, it will inevitably remain as a material consideration.
The challenge is brought on two grounds. First it is said that there was a failure to comply with the relevant EU Directive and the Regulations made to implement it in that the strategic environmental assessment (SEA) did not contain all that it should have contained. This if established would render the policy made in breach unlawful whether or not the omission could in fact have made any difference. That, as is common ground, is made clear by the decision of the House of Lords in Berkeley v SSE [2001] 2AC 603. Although Berkeley concerned an EIA, the same principle applies to a SEA. To uphold a planning permission granted contrary to the provisions of that Directive would be inconsistent with the Court's obligations under European Law to enforce Community rights. The same would apply to policies in a plan.
The second ground asserts that there was a procedural defect. It is said that some technical documents, in particular a Transport Impacts Study, a strategic flood risk and water cycle study and an affordable housing viability study were produced after the consultation period prior to the examination held before an inspector to decide whether the Core Strategy should stand as the Council proposed or should be modified. This meant that persons who might have been concerned if they had seen those studies were deprived of the opportunity of commenting on them. Since only those who had made representations during the consultation exercise were permitted to appear at the examination, some may have wanted to but been unable to appear at and call evidence before the inspector.
S.113(3) of the 2004 Act enables a person aggrieved to make an application to this court in respect of a relevant document on the ground that
"(a) the document is not within the appropriate power;
(b) a procedural requirement has not been complied with."
S.113(6) enables the court to quash the relevant document wholly or in part and generally or as it affects the property of the applicant if the court is satisfied
"(a) that a relevant document is to any extent outside the appropriate power;
(b) that the interests of the applicant have been substantially prejudiced by a failure to comply with a procedural requirement."
There is thus no need to show prejudice to the applicant if s.113(6)(a) applies, but it is required if there is a procedural failure. Since the claimants accept that they had the documents in question and were able to deal with them at the examination the question whether they have suffered substantial or indeed any prejudice has obviously to be considered.
I shall consider first the claim that there was a breach of the Directive and the Regulations. The Directive in question is 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment. This has been transposed into domestic law by the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004 No.1633)(the 2004 Regulations). The Directive in paragraph (4) of the preamble identifies the importance of environmental assessment as a tool for integrating environmental considerations into the adoption of certain plans and programmes. That the Directive and the Regulations apply to the preparation of a Core Strategy is recognised by all parties. Paragraphs (14) & (15) of the preamble provide as follows:-
"(14) Where an assessment is required by this Directive, an environmental report should be prepared containing relevant information as set out in this Directive, identifying, describing and evaluating the likely significant environmental effects of implementing the plan or programme, and reasonable alternatives taking into account the objectives and the geographical...
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