Bovis Homes Ltd v New Forest District Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY |
| Judgment Date | 25 January 2002 |
| Neutral Citation | [2002] EWHC 483 (Admin) |
| Docket Number | NO: CO/4853/1999 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 January 2002 |
[2002] EWHC 483 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Ouseley
NO: CO/4853/1999
CO/3164/2000
MR C GEORGE QC & MR H RICHARDS (instructed by Masons) appeared on behalf of the Bovis
MR R HARWOOD (instructed by Legal Department to New Forest District Council) appeared on behalf of New Forest District Council
MR I DOVE & MR G WILLETTS (instructed by Pitmans) appeared on behalf of Alfred McAlpine Developments
MR G STOKER (instructed by Legal Department to Swale Borough Council appeared on behalf of Swale Borough Council
MR D ELVIN QC & MR J MAURICI ( MISS K OLLEY for judgment only) (instructed by the Treasury Solicitor) appeared on behalf of the Secretary of Statement
BOVIS
Bovis Homes Ltd seeks an order under section 287 of the Town and Country Planning Act 1990 quashing so much of the New Forest District Local Plan as designates land north of Totton, Hampshire, as part of the New Forest Heritage Area. In effect this means that part of the proposals map would be quashed. No policy would need to be quashed because there is no policy as such which designates the area in contention as part of the Heritage Area and none of the development control policies applying to that Area are of themselves objectionable in relation to a properly designated Heritage Area.
Bovis contends that the adoption by the New Forest District Council of its local plan was unlawful because the Council had given legally inadequate reasons for its rejection of the recommendation of the local planning inspector that the area in question should not be within the Heritage Area. It contends that the issue was approached with a closed mind and that the Council's decision was vitiated by apparent bias on the part of the chairman of the relevant committee, the Planning and Transportation Committee. Bovis also contends that this particular decision-making process breached its human rights contained within Article 6 of the European Convention on Human Rights. It did not contend that, if the statutory provisions were properly interpreted, the local plan process was incompatible with its Convention rights.
The Facts
The New Forest is one of the largest areas of unenclosed land in the south of England. It was established as a Royal Forest in 1079. Bylaws govern the unenclosed land, applied by the Verderers to the area known as the Perambulation, established by the New Forest Act 1864. The boundary of the Perambulation lies some 5 kilometres within the New Forest Heritage Area as it is currently designated in the adopted Local Plan. The area in contention in this case lies to the north of Totton. It is bounded to the west by the new dual carriageway Totton western bypass (the A326), from north to east by the A36 and in the south by two roads which approximately mark the northern edge of Totton. The area is sometimes called "Land North of Totton". It can be seen very roughly as the south west quadrant of a larger area of land between Totton and the M27 further to the north, which was at one time proposed for inclusion in the Heritage Area but now is outside it. The New Forest starts or continues (depending on one's point of view) to the west of the A326.
The origin of the New Forest Heritage Area lay in the need, recognised in the mid-1980s, to protect a wider area than that managed by the Forestry Commission in order to preserve the character of the New Forest and its essential grazing land. It was not at that time to be a national park, but the area covered by the New Forest Heritage Area was to have equivalent status in terms of the planning approach to development within it. The Forestry Commission had set up a review group in 1986 which, recognising the need for safeguarding some of the surrounding lands and for coordinated action over that wider area, led to the eventual setting up in 1990 of the New Forest Committee ('NFC'). This non-statutory body drew its membership from Hampshire County Council, New Forest District Council, the Verderers, the Forestry Commission and the Countryside Commission, now the Countryside Agency. Its purpose was to formalise liaison between various interested parties. In a letter to the Chairman of the Forestry Commission from the Minister of Agriculture, undated but probably written around the end of 1989, the Minister had endorsed the review group's recommendation for the establishment of the NFC, disagreed with the boundaries of the Heritage Area as then designated by the District Council, and asked the NFC to agree revised Heritage Area boundaries so as to incorporate essential grazing land and the best of the landscape around the perambulation in order that the area would justify the application within its boundaries of land management policies similar to those which applied within a national park. The then Heritage Area boundaries were seen as too widely drawn for that purpose, rather than the reverse.
In late 1989 the District Council produced the consultation draft of the New Forest District East Local Plan. The "land north of Totton" was shown as a potential principal growth sector, not part of any Heritage Area.
Although by 1989/1990 the NFC was the body thought to be appropriate to define the revised Heritage Area boundaries, in fact their definition became a matter for the local planning system. The Hampshire Structure Plan required those boundaries to be defined through the Local Plan process. This was to become a matter to which a number of bodies, not least the New Forest District Council, were but slowly, if ever truly, to be reconciled. The role of the NFC in setting those boundaries, and the District Council's attitude towards the involvement of independent scrutiny have underlain some admittedly justified criticism of the District Council's approach to the setting of those boundaries.
In January 1991 the NFC appointed Land Use Consultants ('LUC') to recommend redefined boundaries for the New Forest Heritage Area which could then secure equivalent status to that of national parks. The June 1991 LUC report is a lengthy, detailed and structured analysis of landscape types and of information on grazing and ecology. It sets out criteria for the inclusion of land and for the drawing of boundaries. These criteria were applied in the Local Plan process by both the District Council and by Local Plan Inquiry Inspectors. Their value was not disputed, albeit that their application to specific areas was sometimes, as here, highly contentious. It is clear that "natural beauty" was not a matter to be resolved simply according to the eye of the beholder.
The criteria as recommended by LUC appeared in the Local Plan as follows:
"D1.4 The two principal criteria used by the New Forest Committee for defining the New Forest boundary were:
ito incorporate the land of outstanding national importance for its natural beauty, including flora, fauna, geological and physiographical features, and elements arising from human influence on the landscape, including archaeological, historical, cultural, architectural and vernacular features;
ii to incorporate essential grazing land. This includes peripheral farmland which is or has recently been used as grazing land in conjunction with the New Forest, or which is part of an area which could be suitable to be utilised for grazing relating to the forest (whether with Forest Rights or not) so as in aggregate to include a sufficient pool of land to provide an adequate supply of back-up and the continued functioning of the historic dispersed pastoral regime relating to New Forest commoning in the long term. Convenience of access to the open forest was also considered in this context.
D1.5 The detailed alignment of the boundary also takes into account the need to:
iincorporate the minimum area of land beyond the open forest which is essential to protect important open forest landscapes in the long term;
ii ensure continuity of local ecological habitats between the open forest and adjoining land; and
iii utilise, wherever possible, easily recognisable physical features such as roads or rivers."
Mr Charles George QC for Bovis suggested that the LUC report contained a further criterion or at least a gloss on the first criterion, namely of "visual and historic links". One of the landscape types identified by LUC was "ancient forest farmlands" or Landscape Type 5. Seven of the ten types identified were seen as New Forest types or as part of the wider New Forest landscape and meriting, therefore, inclusion within the Heritage Area. Type 5 was described thus:
"2.22 The ancient farmed and wooded landscapes of the Forest. Most of the large ancient woodland complexes, outside the Forest core, occur within this landscape type. These create a strong sense of enclosure and form important ecological corridors linking the Forest core with the surrounding farmland. The undisturbed rural character of this landscape offers a contrast to the busier enclosed landscapes of both the heathland, the Forest smallholdings and dwellings types."
It was also described as providing an impression of "being in the forest".
The report recommended the inclusion of the wider area around what is now the "Land North of Totton" within the Heritage Area as part of the ancient forest farmlands.
In April 1991 the District Council produced the Deposit Draft of the New Forest District East Local Plan. The "Land North of Totton" was...
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