Calverton Parish Council v Nottingham City Council and Others Peveril Securities Ltd and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Jay |
| Judgment Date | 21 April 2015 |
| Neutral Citation | [2015] EWHC 1078 (Admin) |
| Docket Number | Case No: CO/4846/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 April 2015 |
[2015] EWHC 1078 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jay
Case No: CO/4846/2014
and
Richard Turney (instructed by Public Access) for the Claimant
Morag Ellis QC and Annabel Graham-Paul (instructed by Nottingham, Broxtowe and Gedling Borough Councils) for the Defendants
Richard Honey (instructed by Walker Morris, Leeds) for the Interested Parties
Hearing date: 24 th March 2015
Introduction
This is an application brought under section 113 of the Planning and Compulsory Purchase Act 2004 ("the Act") to quash, in part, the Greater Nottingham — Broxtowe Borough, Gedling Borough and Nottingham City — Aligned Core Strategies ("the ACS"), adopted by the Defendants in September 2014. The ACS is part of the development plan for each of the three Council's areas.
Broxtowe Borough and Gedling Borough are contiguous with the outer boundary of the city of Nottingham, and substantially comprise Green Belt. The Claimant is a Parish Council within Gedling Borough and may be described as an enclave within Green Belt. Two Interested Parties have intervened in these proceedings: they own land at Toton, which is within Broxtowe Borough and technically, Green Belt. Although Toton is some distance away from the city boundary, it may fairly be characterised as within the main built-up area of Nottingham.
Development within Green Belt is never without controversy. It is clear from the "Chronology of Events", namely Appendix 1 to the witness statement of Alison Gibson dated 11 th November 2014, that a strategic review of the Nottingham-Derby Green Belt has been on the table for some time. The precise concatenation of events is not relevant to this application. The ACS was subject to independent review by a planning Inspector, Ms Jill Kingaby, and examination hearings took place in 2013 and 2014. On 24 th July 2014 the Inspector published her report, approving the ACS with modifications. The Claimant's advisors identified what were considered to be legal deficiencies in the report, but notwithstanding its contentions the ACS was adopted by the three Councils on various dates in September 2014.
The Inspector's report and the ACS will require more detailed exposition subsequently. At this stage, it is appropriate to turn to the relevant legislative framework. I will focus now on the legislative provisions relevant to Grounds 1 and 2; Ground 3 raises a discrete point, and will be addressed subsequently.
The Statutory Scheme
I was taken to all the relevant provisions of the Act. Some of these explain the status of the ACS as a local plan, included in the local development documents which form part of the development plan for each of the three Council's areas (see, in particular, sections 15, 17 and 38). I will concentrate on the statutory provisions which bear on the issues between the parties.
Section 19(2) of the Act provides:-
"In preparing a development plan document or any other local development document the Local Planning Authority must have regard to —
(a) national policies and advice contained in guidance issued by the Secretary of State;
…
(h) any other local development document which has been adopted by the Authority;"
Section 20 provides for independent examination by the Secretary of State's Inspector. Pursuant to section 20(5):—
"The purpose of an independent examination is to determine in respect of the development plan document —
a) whether it satisfies the requirements of section 19…;
b) whether it is sound;"
The definition of the adjective "sound" is not to be found in the Act itself but in national policy — the latter being "guidance issued by the Secretary of State" for the purposes of sections 19(2)(a) and 34, and to which regard must be paid.
Miss Morag Ellis QC for the Defendants placed particular weight on section 39 of the Act, which provides:—
" Sustainable Development
1) This section applies to any person who or body which exercises any function —
b) under Part 2 of this Act in relation to local development documents;
…
2) The person or body must exercise the function with the objective of contributing to the achievement of sustainable development"
I agree that this confers a positive obligation on the Councils, but its limitations need to be understood. "Sustainable development" is not a concept which is defined in the Act, in which circumstances the enlightenment which is required may only be found in national policy.
Section 113 confers powers on this Court to intervene if satisfied "that a relevant document [including a development plan] is to any extent outside the appropriate power". It is common ground that the jurisdiction of this Court on this statutory appeal is akin to Judicial Review. The Court of Appeal has explained on a number of occasions (see, for example, Blythe Valley BC v Persimmon Homes (North East Limited) and another [2009] JPL 335) that whether a development plan complied with national policy guidance was largely a matter of planning judgment with which the Court should be slow to interfere, subject always to that guidance being properly understood.
National Policy
Relevant national policy is located in the National Planning Policy Framework ("the NPPF"), published by the Department for Communities and Local Government in March 20I was taken to the National Planning Policy Guidance finalised in March 2014. This is referred to in the Inspector's report, but in my view does not significantly supplement the NPPF.
"Sustainable development" is not expressly defined in the NPPF, but light is nonetheless thrown on it. The effect of paragraph 6 of the NPPF is that the substantive policies set out elsewhere in this national policy, interpreted and applied compendiously, amount to the Government's view of what sustainable development means. On one view, it represents a balance between three factors — economic, social and environmental — which are admittedly not necessarily complementary (see paragraph 7). On another, if certain environmental factors are identified, then their weight must be assessed and these factors constitute a restriction or brake on what would otherwise be sustainable development. The NPPF is not worded with fine legal precision (it is a policy, not a commercial contract), but some further assistance is given by paragraph 14, which provides:-
"At the heart of the NPPF is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking.
For plan-making this means that:-
• Local Planning Authorities should positively seek opportunities to meet the development needs of their areas;
• Local Plans should meet objectively assessed needs, with sufficient flexibility to adapt to rapid change, unless:
— any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this framework taken as a whole; or
— specific policies in this framework indicate development should be restricted."
This last aspect is footnoted as follows:-
"For example, those policies relating to sites protected under the Birds and Habitats Directive (see paragraph 119) and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, heritage coast or within a National Park (or the Broads Authority); designated heritage assets; and locations at risk of flooding or coastal erosion."
I agree with Miss Ellis that development which meets objectively assessed needs is presumptively sustainable, but I would add that the preposition "unless" is drawing attention to a policy constraint. That approach is reinforced by the footnote.
The parties are agreed that paragraph 47 of the NPPF is another important provision. It provides:—
"To boost significantly the supply of housing, Local Planning Authorities should:
• Use their evidence base to ensure that their local plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this framework, including identifying key sites which are critical to the delivery of the Housing Strategy over the plan period;
• Identify and update annually a supply of specific deliverable sites sufficient to provide 5 years' worth of housing against their housing requirements with an additional buffer of 5%…
• Identify a supply of specific, developable sites for broad locations for growth, for years 6–10 and, where possible, for years 11–15;
…"
The subordinate clause, "as far as is consistent with the policies set out in this framework", is arguably slightly more generous (in terms of favouring sustainable development) than the "unless" in paragraph 14 of the NPPF, but ultimately nothing turns on this. It should be emphasised, though, that paragraph 47 does not create a statutory duty (c.f. section 39(2) of the Act); it constitutes policy to which regard must be had.
Section 9 of the NPPF deals with "Protecting Green Belt Land". A fundamental aim of Green Belt policy is to prevent urban sprawl. Under paragraph 80 of the NPPF, the Green Belt serves five purposes, one of which is explicitly environmental — "to assist in...
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