George Wimpey UK Ltd v Tewkesbury Borough Council
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE WYN WILLIAMS,Mr Justice Wyn Williams |
| Judgment Date | 03 April 2007 |
| Neutral Citation | [2007] EWHC 628 (Admin) |
| Date | 03 April 2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4228/2006 |
[2007] EWHC 628 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Honourable Mr Justice Wyn Williams
Case No: CO/4228/2006
Mr Peter Village QC and Mr Robert White (instructed by Messrs Berwin Leighton Paisner LLP Solicitors ) for the Claimant
Mr Patrick Clarkson QC and Ms Zoe Leventhal instructed by and for the Defendant
Hearing dates: 14 th -15 th February 2007
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Wyn Williams:
I have before me two applications. The first is an application made under Section 287 of the Town and Country Planning Act 1990 for orders quashing selected parts of the Local Plan adopted by the Defendant, Tewkesbury Borough Council. Secondly, there are proceedings for judicial review. In those proceedings the Claimant seeks permission to proceed and, substantively, declaratory relief in respect of one part of the Local Plan and, further, declaratory relief in relation to the Defendant's refusal of its request for a second local public enquiry in relation to the Plan.
Before dealing with the grounds upon which these proceedings are based, it is necessary that I set out relevant factual and background material. I take much of my recital of that material from the comprehensive skeleton arguments prepared by counsel.
The Claimant is the owner of land located to the north of the settlement known as Bishops Cleeve, Gloucestershire. In these proceedings that area of land has been referred to as "the Homelands Farm Site ". In this judgment I will refer to it as "Homelands Farm." The Claimant wishes to develop this land for residential purposes.
In November 1998, the Defendant placed on deposit the first draft of a Local Plan. In January 2001, it published a revised version of that plan. Homelands Farm was not allocated within the plan for new housing development.
In response to the revised plan the Defendant received a number of representations and objections. The Claimant objected to the fact that Homelands Farm was not allocated for housing development. It also objected to many of the sites which the Defendant had allocated for housing within its draft plan.
A local public inquiry was convened to consider all the representations and objections which had been made in connection with the draft plan. A duly appointed inspector conducted the inquiry between March 2002 and December 2002 although, as I understand it, the inquiry was not formally closed until March 2003. The Claimant appeared at the inquiry to support its contention that Homelands Farm should be included within the housing allocations in the plan and to object to the inclusion of various other sites. In particular, in the context of this challenge, I should record that the Claimant objected to the inclusion of two sites, namely a site at Leckhampton Lane, Shurdington and a site at Stoke Orchard. At that time those sites were included within the draft plan as policies SH1 and ST1. For the remainder of this judgment I will call those sites "the Shurdington site " and "Stoke Orchard."
In due course, the Inspector reported her findings and detailed her recommendations. She sent her report to the Defendant together with a covering letter which summarised her recommendations.
The Inspector's letter dealt in some detail with the interconnected issues of housing and Green Belt. The following extracts are relevant on those topics.
"9. It needs to borne in mind that the plan had a very long gestation period, during which there had been significant policy changes at the county, regional and national levels. As a result the strategy of the RDDLP [Revised Deposit Draft Local Plan] which emerged more than two years after the Deposit Draft, differs significantly from it, and many objections had been overtaken by events. Since the publication of the RDDLP, new regional guidance in the form of RPG10 (September 2001) has been provided, and the modifications to the Plan will be considered against the background of the emerging Gloucestershire Structure Plan Third Alteration, which has commenced its Examination in Public.
10. The main policy issues dealt with by the inquiry were concerned with housing and the Green Belt. My recommendations generally endorse the Plan's approach to the residual housing requirement and to the development of the strategic housing site at Brockworth/Hucclecote. But, perhaps as a result of its history, I find that the plan lacks a clear vision for a sustainable development of the Borough, and this gives rise to a number of important weaknesses. I identify significant difficulties with a number of the proposed housing allocations, mainly because of their incompatibility with PPG3. The absence of any published, comparative sustainable assessment of the proposed allocations has not assisted the development of the strategy that would implement PPG3. And fundamentally, the Council's decision to not evaluate the contribution that could be made to a more sustainable pattern of development by selective release of Green Belt land has led, in my view, to a plan that could frustrate the implementation of RPG10's vision for this part of the region. In the light of these and/or other factors, I recommend that the proposed allocations under Policies BR4, SH1, DH1, HM2, BC4, SH3, AS5, WI1, WI2 and ST1 be deleted. Acceptance of my recommendations will entail significant re-working of the Plan and further delay in adoption, but for the reasons set out above I consider that this is vital to the achievement of a more sustainable pattern of development not just in the Borough but in its hinterland.
11. In order to bring forward a more sustainable strategy, I recommend that a full comparative assessment of potential housing allocation should be undertaken and made publicly available as a background study for the modified plan. In this regard the Council will no doubt look more closely at potential (sic) identified in the Urban Capacity Study and seek to update and refine it. Nonetheless, on the basis that some greenfield allocations will be required, I recommend that alterations should be made to the Green Belt boundary where this would meet the tests set out in PPG3. The Council made clear during the inquiry that, in these circumstances, it would wish to consider all potential Green Belt releases, and not just those canvassed in the objections. I have therefore indicated both the Green Belt and non-Green Belt sites that were raised in the objections and that merit inclusion in the assessment of potential new allocations. These are the omission sites at M and G Sports Ground and Golden Yolk Farm/Middle Farm at Badgeworth; Homelands Farm, Bishops Cleeve; Green Street/Kennel Lane, Brockworth; south of Mill Lane, Brockworth; an extension of the Policy HU1 housing area at Hucclecote Road, Hucclecote; Longford/Innsworth; and Barbridge Nurseries, Uckington. …..
13. The scale of development at Bishops Cleeve was the focus of a number of objections to the Plan. There was insufficient evidence to conclude that Bishops Cleeve is not capable of accommodating expansion of the magnitude envisaged in the RDDLP, although I recommend the deletion of the largest housing allocation there for site-specific reasons. But in assessing the most sustainable options at the modifications stage, the Council will no doubt take account of RPG10's concern, expressed at paragraph 3.11, that some growth relating to the Principal Urban Areas appears to have been leaping the Green Belt boundary to nearby commuter towns, leading to less sustainable patterns of development and travel."
As will be apparent from that extract from the Inspector's letter, she recommended that the Shurdington site and Stoke Orchard be deleted from the housing allocations. Further she recommended that Homelands Farm should be included in the assessment of potential new allocations which she suggested should be undertaken.
The Defendant asserts that following the receipt of the Inspectors' recommendation and letter it carried out a "full comparative assessment of potential housing allocations " as recommended by the Inspector. The results of that assessment are contained in two documents. The first is entitled " Technical Paper 1: Site Sustainability Assessment May 2004 ". The second is entitled " Technical Paper 2: Settlement Sustainability Assessment May 2004 ".
In June 2004, the Defendant published a document entitled "Inspector's Recommendations and Tewkesbury Borough Council's Statement of Reasons." This was a document which not only identified modifications to the Draft Plan but which also considered the Inspector's recommendations and the Defendant's response to those recommendations. The Defendant proposed that its Plan should be modified by the deletion from the housing allocations of the Shurdington site and Stoke Orchard.
As I have indicated already, the Inspector had recommended that Homelands Farm should be included within the assessment undertaken by the Defendant. The Defendant accepted that suggestion and included the site within the assessment. However, the Defendant decided not to include the site within its housing allocation. It's reasons for non-inclusion were as follows:
"Recommendation is not accepted. The site was assessed as part of the comparative assessment of potential alternative locations. While it is relatively well located in relation to local facilities, it is remote from the centre of Cheltenham. The Inspector advised the Council to consider the...
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R (George Wimpey UK Ltd) v Tewkesbury Borough Council
...decision of Wyn Williams J dated 3 April 2007 in George Wimpey UK Limited (“Wimpey”) v Tewkesbury Borough Council (“the Council”) [2007] EWHC 628 (Admin). We said that we would give our reasons in writing later. These are my reasons. We reserved our reasons because an issue of jurisdiction ......