Dinedor Hill Action Association v Herefordshire County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice COLLINS |
| Judgment Date | 24 July 2008 |
| Neutral Citation | [2008] EWHC 1741 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3902/2007 |
| Date | 24 July 2008 |
[2008] EWHC 1741 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Collins
Case No: CO/3902/2007
Mr David Forsdick (instructed by Friends of the Earth) for the Claimant
Mr Timothy Jones (instructed by Mr Alan McLaughlin, Solicitor to the Council) for the Defendant
Mr Ian Dove Q.C. & Richard Kimblin (instructed by Hammonds) for the Interested Party
Hearing dates: 26 & 27 June 2008
The claimant is a company limited by guarantee which was formed to enable this claim under s.287 of the Town & Country Planning Act 1990 to be brought. The claim is directed at and seeks to quash Policy H2 in the Herefordshire Unitary Development Plan 2007 (the UDP) insofar as that policy allocates land at Bullinghope for housing. The claimant has the support of a number of individuals who objected to the inclusion of this land for housing purposes and who made their objections both at the public inquiry which was held in 2005 and to the defendant's intention to reject the inspector's conclusion that the land should not be included in policy H2.
Under the new procedures provided for by the Planning and Compulsory Purchase Act 2004, UDPs are no longer to be part of the planning process. However, there are transitional provisions in the 2004 Act which are designed to preserve the 1990 Act in relation to UDPs which in September 2004 were going through the process which would lead to their adoption. This is the relevant date for the purposes of the transitional provisions: see s.119 of the 2004 Act applying Schedule 8. It was, following argument and consideration of the relevant paragraphs, common ground that, having regard to the stage reached in consideration of the UDP, the 1990 Act provisions continued to apply and, in particular, the procedure to be adopted was governed by the Town and Country Planning (Development Plan)(England) Regulations 1999 (the 1999 Regulations)( SI 1999 No.3280).
Following a deposit draft in 2002, a revised deposit draft of the UDP was produced in 2004. In order to deal with a number of objections to various policies in the UDP, a public inquiry was held between February and June 2005. The inspector's report was published on 2 March 2006. At that point, Regulation 27(1) of the 1999 Regulations required the defendant:-
“… after considering the report of the person holding the inquiry … [to] prepare a statement of
(a) the decisions they have reached in the light of the report and any recommendations contained in the report, and
(b)the reasons for any of those decisions which do not follow a recommendation contained in the report.”
Where the intention of a planning authority is not to accept a recommendation, a further inquiry can be held into any objection to that intention: Regulation 29(4)(d). If the authority decides not to hold an inquiry, Regulation 28(1) requires it to “prepare a statement of case of their decisions as respects all the objections and their reasons for each decision.” The defendant decided that a further inquiry need not be held and that decision is attacked. The claimant submits that a particular part of the reasons for failing to accept the recommendation should, since it had not been considered in depth in the inquiry that had been held, be subjected to the inquiry process.
There was thus a statutory obligation upon the authority to give reasons for deciding not to accept any recommendation made by the inspector. Separate reasons must be given in respect of each objection to any such decision (Regulation 28(1)). The courts' approach to the reasons given is, to adapt what was said by Lord Brown in South Bucks D.C. v Porter (No 2) [2004] 1 W.L.R. 1953 at p.1964 (Paragraph 36), that they must enable the reader to understand why the particular conclusions were reached in relation to the objections so that the objectors can assess the lawfulness of the conclusions and what follows from them, so that any future action (if any) can be considered. Further, if the reasons are inadequate, relief can only be granted if the claimant has been substantially prejudiced by the inadequacy. S.287 of the 1990 Act enables a person aggrieved to make an application to the High Court on the ground that inter alia a plan or a policy in it is:-
“(2)(a) not within the appropriate power; or
(b) a procedural requirement has not been complied with.
(3B) provides that the court may quash the policy if satisfied that it was outside the appropriate power, or if there was a failure to comply with a procedural requirement, that failure substantially prejudiced the claimant.”
It is, I think, obvious that the reasons for rejecting an inspector's recommendation must explain clearly why the authority in question found it necessary to disagree with it. Since the authority is both proposer and judge, the obligation to deal thoroughly, conscientiously and fairly with any objection is enhanced: see per Thorpe LJ in Stirk v Bridgnorth DC (1997) 73 P. & C.R. 4 39 at p.444. Where there is an exercise of planning judgment based on a balancing of prospective housing need against the disadvantages of such development on a particular site, the reasons must enable readers to understand how the balance has been struck and why the inspector's judgment has not been accepted. When such a balance has to be struck, it is not solely a matter of subjective planning judgment: see Peel Investments (North) Ltd v Bury Council [1999] EWCA Civ 738.
Because of the new powers established by the 2004 Act, the UDP had a very limited life. The plan's period runs until March 2011 and its policies are saved for three years from the date of adoption, i.e. until March 2010, with the Secretary of State having power to extend this period. The defendant had provided in the deposit plan for 11,700 dwellings in the period 1996 – 2011 which reflected figures derived from a regional planning guidance of 1998. In order to meet that figure, the defendant had included a site to the north of the city at Holmer. This would provide 300 homes. A number of objections were raised to this site (which, in common with Bullinghope, is greenfield land). These included concerns about flooding and drainage and the high infrastructure costs, which among other things had to deal with overhead electricity services which at present cross the site. The objections persuaded the defendant to prefer instead of Holmer the Bullinghope site which would also produce 300 homes. Thus the defendant's case at the inquiry involved the choice of Bullinghope rather than Holmer. The defendant never suggested and it was no part of its submissions to the inspector that both sites were needed in order to meet the housing requirements in the plan period.
The inspector considered that the figures should be based on the up-to-date RPG11 which expressed housing requirement in terms of annual average rates. Applying this approach to known completions between 1996 and 2001, provision would have to be made for a maximum of 4800 to 2007 and 2400 from 2007 to 2011, namely 800 and 600 per annum respectively. This would mean that over the plan period there was a maximum requirement of 12,200, some 500 more than the figure used by the defendant. I have said a maximum. The requirement is expressed as a minimum for Major Urban Areas (in which Hereford is not included) but a maximum elsewhere: see Policy CF3 A in RPG11. Mr Dove submits that maximum means only that there should be no more than the allocation, not that it should not be met. Mr Forsdick submits that it means that, while no doubt it is desirable to meet the allocation and it can properly be regarded as a target, there can be no real concern if it is not met. Thus it is unnecessary for the allocation in the plan to go above the figures required in case all are not completed within the period. It seems to me that the differentiation between minimum and maximum supports Mr Forsdick's construction. Particularly in the light of the expressed need for further study, it would not be right to allocate land in the UDP for housing development which was not required save in order to provide a surplus to meet unspecified future failures of identified sites to produce what was anticipated. The defendant itself in its Housing Land Study in 2004 identified a shortfall in the annual rate of completion, but indicated that rates should increase when the UDP allocation sites began to be developed (Paragraph 3.9).
The figures were discussed during the inquiry and I cannot believe that the possibility of the higher quantity which the inspector finally lighted on in his report was not mentioned. Whether or not this was so, the defendant at no time suggested that there was a need for both Holmer and Bullinghope in order to meet any allocation figure. Thus no objector dealt with this. The objections to Bullinghope were largely based on the contention that to develop the site would constitute an unwarranted and, in planning terms, harmful extension of the city into the countryside.
The revised deposit draft described the Bullinghope site thus:-
“This 13 hectare site includes land for structural landscaping and forms the largest Greenfield housing site in the Plan and lies directly adjacent to the Marches railway line (Hereford – Newport) south of the city of Hereford. This land, which lies between Bullingham Lane and Hoarwithy Road and is crossed by the Withy Brook to the eas...
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