Dr Anna Hoare v The Vale of White Horse District Council Oxfordshire County Council and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr John Howell |
| Judgment Date | 07 July 2017 |
| Neutral Citation | [2017] EWHC 1711 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 July 2017 |
| Docket Number | Case No: CO/5690/2016 |
[2017] EWHC 1711 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
John Howell QC
(Sitting as a Deputy High Court Judge)
Case No: CO/5690/2016
and
Mr Pavlos Eleftheriadis (instructed by Fortune Green Legal Practice Limited) for the Claimant
Ms Suzanne Ornsby QC and Mr Hugh Flanagan (instructed by the Defendant's Head of Legal and Democratic Services) for the Defendant
The Interested Parties were not represented
Hearing dates: 14 and 15 June 2017
Approved Judgment
Mr John Howell QC:
This is a claim for judicial review of the decision of the Vale of White Horse District Council to accept modifications to the draft Faringdon Neighbourhood Plan (which had been recommended by Mr Andrew Ashcroft following his independent examination of that Plan) and to proceed with a referendum on the Plan. That decision was taken on September 16 th 2016 by Councillor Roger Cox under powers delegated to him. In effect he simply accepted the modifications proposed, and the recommendation to proceed, contained in Mr Ashworth's report. A decision notice, accompanied by an Appendix listing the modifications to the Plan, was published on the District Council's website on October 6 th 2016. The referendum was subsequently held on November 24 th 2016. It was approved by 944 of the 1,038 residents of Faringdon who voted. The Neighbourhood Plan was adopted by the District Council on December 14 th 2016.
This claim for judicial review is not one made under section 61N(1) of the Town and Country Planning Act 1990 (" the 1990 Act") in respect of the decision to adopt the Faringdon Neighbourhood Plan (" the FNP"). It is made, with permission granted by Lang J, in accordance with section 61N(2) of that Act in respect of the earlier decision of the District Council. The Claimant, Dr Anna Hoare, seeks an order quashing the decision to accept the modifications proposed by Mr Ashworth (" the Examiner") and to proceed with a referendum and a declaration that the allocation of Wicklesham Quarry for employment uses in the Plan was unlawful.
The Claimant is a local resident whose objection to the FNP is directed at its Policy 4.5B. That policy seeks to safeguard Wicklesham Quarry for employment uses following completion of quarrying and restoration activities on the site and to support such development on it provided that there is a demonstrable need for it, no other suitable site closer to the town centre is available and certain other conditions are met.
On behalf of the Claimant, Mr Pavlos Eleftheriadis contended that the District Council's decision to accept the modifications proposed by the Examiner and to proceed with the referendum was unlawful given that Policy. Mr Eleftheriadis submitted (a) that Policy 4.5B in the FNP is about a "county matter", which is one form of "excluded development" that cannot lawfully form part of a neighbourhood development plan; and (b) that the District Council's conclusion that the FNP met the "basic conditions" (which such a plan must meet) was flawed for three reasons. When considering Policy 4.5B, he submitted (i) that the District Council erred in treating the Quarry as "previously developed land" for the purpose of the National Planning Policy Framework (" NPPF"); (ii) that the District Council was not lawfully satisfied the FNP was in general conformity with the strategic policies contained in the development plan for the area; and (iii) that the District Council ought to have found that making the FNP would breach obligations under Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (" the SEA Directive") and the Environmental Assessment of Plans and Programmes Regulations 2004 (" the 2004 Regulations") which transpose the provisions of the SEA Directive into national law.
THE STATUTORY FRAMEWORK
The "development plan" is central to the administration of development control in England. In dealing with any application for planning permission, planning authorities must have regard to "the provisions of the development plan, so far as material to the application" and other material considerations: see section 70(2) of the 1990 Act. Moreover "if regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise": see 38(6) of the Planning and Compulsory Purchase Act 2004 (" the 2004 Act").
In England outside Greater London, the "development plan" now includes (in addition to any "saved policies" in an earlier development plan) the development plan documents (taken as a whole) which have been adopted or approved in relation to the area and any "neighbourhood development plan" which has been made in relation to that area: see section 38(3) of the 2004 Act. "If to any extent a policy contained in a development plan for an area conflicts with another policy in the development plan the conflict must be resolved in favour of the policy which is contained in the last document to become part of the development plan": see section 38(5) of the 2004 Act.
Section 38A(2) of the 2004 Act provides that "a " neighbourhood development plan" is a plan which sets out policies (however expressed) in relation to the development and use of land in the whole or any part of a particular neighbourhood area specified in the plan." Such policies may include site allocation policies: R (Larkfield Homes Ltd) v Rutland County Council [2015] EWCA Civ 597, [2015] PTSR 1369.
However "a neighbourhood development plan may not include provision about development that is excluded development": see section 38B(1)(b) of the 2004 Act. For this purpose "excluded development" is defined by section 61K of the 1990 Act 1 as:
"(a) development that consists of a county matter within paragraph 1(1)(a) to (h) of Schedule 1 [to the 1990 Act],
(b) development that consists of the carrying out of any operation, or class of operation, prescribed under paragraph 1(j) of that Schedule (waste development) but that does not consist of development of a prescribed description,
(c) development that falls within Annex 1 to Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (as amended from time to time),
(d) development that consists (whether wholly or partly) of a nationally significant infrastructure project (within the meaning of the Planning Act 2008),
(e) prescribed development or development of a prescribed description, and
(f) development in a prescribed area or an area of a prescribed description."
A proposal for the making of a neighbourhood development plan may be made by a qualifying body (such as a parish council). Before doing so it must consult locally and with certain bodies who may be affected by it 2. Having received the relevant documentation 3, the local planning authority must then consider whether the draft plan complies with various enactments, including sections 38A and 38B: see section 38C(1) and (5)(b) of the 2004 Act and paragraph 6(3) of schedule 4B to the 1990 Act. If satisfied that the matters mentioned there have been complied with, and having publicised the proposals and details of how to make representations 4, the local planning authority must submit the draft and any prescribed documents for independent examination.
The examiner must consider inter alia whether the draft meets "the basic conditions" and complies with enactments such as sections 38A and 38B 5. It will meet "the basic conditions" (which are set out in paragraph 8(2) of Schedule 4B to the 1990 Act) only if:
"(a) having regard to national policies and advice contained in guidance issued by the Secretary of State, it is appropriate to make the [plan],
…….
(d) the making of the [plan] contributes to the achievement of sustainable development,
(e) the making of the [plan] is in general conformity with the strategic policies contained in the development plan for the area of the authority (or any part of that area),
(f) the making of the [plan] does not breach, and is otherwise compatible with, EU obligations, and
(g) prescribed conditions are met in relation to the [plan] and prescribed matters have been complied with in connection with the proposal for the [plan]."
The examiner is required to make a report on the draft plan containing his recommendations in accordance with paragraph 10 of Schedule 4B to the 1990 Act and no other recommendations. This paragraph 6 provides that:
"(2) The report must recommend either—
(a) that the draft [plan] is submitted to a referendum, or
(b) that modifications specified in the report are made to the draft [plan] and that the draft [plan] as modified is submitted to a referendum, or
(c) that the proposal for the [plan] is refused.
(3) The only modifications that may be recommended are—
(a) modifications that the examiner considers need to be made to secure that the draft [plan] meets the basic conditions mentioned in paragraph 8(2),
…. …
(c) modifications that the examiner considers need to be made to secure that the draft [plan] complies with the provision made by or under sections [38A and 38B of the 2004 Act],
…, and
(e) modifications for the purpose of correcting errors.
(4) The report may not recommend that an order (with or without modifications) is submitted to a referendum if the examiner considers that the order does not—
(a) meet the basic conditions mentioned in paragraph 8(2), or
(b) comply with the provision made by or under [38A and 38B of the 2004 Act].
….
(6) The...
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R Driver v Secretary of State for Housing Communities and Local Government
...that strategic policies were more readily identified. However, as the court in Hoare v Vale of the White Horse District Council [2017] EWHC 1711 (Admin) made clear (Mr John Howell QC, sitting as a Deputy Judge of the High Court) at paras.88 and 89, the question of whether a particular polic......