Headcorn Parish Council v Secretary of State for Communities and Local Government Maidstone Borough Council and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 02 May 2017 |
| Neutral Citation | [2017] EWHC 970 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 May 2017 |
| Docket Number | Case No: CO/6389/2015 & CO/6624/2015 |
[2017] EWHC 970 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/6389/2015 & CO/6624/2015
The Queen on the application of
The Queen on the application of
Richard Buxton (instructed by Richard Buxton Environmental and Public Law) for the Claimants
Robert Williams (instructed by the Government Legal Department) for the Secretary of State for Communities and Local Government
Stephen Whale (instructed by Sharpe Pritchard LLP) for Maidstone Borough Council
The Second Interested Party in CO/6389/2015 did not appear and was not represented
The Interested Parties in CO/6624/2015 did not appear and were not represented
Hearing date: 4 April 2017
Approved Judgment
The Claimant seeks judicial review in respect of a proposed housing development of up to 220 houses on land immediately north of the village of Headcorn, Kent ("the Site"). The Claimant is the Parish Council for Headcorn and represents the interests of local residents who are concerned about the large scale and unsuitable location of this development.
In its first claim for judicial review (CO/6389/2015), the Claimant challenged the screening direction made by the Secretary of State for Communities and Local Government ("the Secretary of State"), on 2 November 2015, that the proposal was not likely to have significant effects on the environment and so was not EIA development within the meaning of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 ("the EIA Regulations 2011").
In its second claim for judicial review (CO/6624/2015), the Claimant challenged the grant of planning permission by Maidstone Borough Council on 13 November 2015.
Permission to apply for judicial review in the first claim was refused by Jay J. on the papers on 21 December 2015. On 27 January 2016, Holgate J. ordered that both claims should be consolidated and heard together. At an oral hearing, on 17 February 2016, Holgate J. refused permission to apply for judicial review in both claims. On appeal to the Court of Appeal, Jackson LJ granted permission to apply for judicial review in both claims, at an oral hearing on 15 December 2016.
By the date of the substantive hearing, both judicial review claims were based upon one ground only, namely, that the Secretary of State failed to take into account a material consideration, namely the concerns expressed by Mrs Cooper, Corporate Director – Growth, Environment and Transport at Kent County Council ("KCC"), in correspondence with Maidstone Borough Council ("MBC"), about the cumulative impact of traffic on the A229 and A274 south of Maidstone, generated by the proposed developments. The other grounds pleaded by the Claimant in its grounds were not pursued.
Facts
The Site is some 8.6 ha in size, and is immediately north of Headcorn village, between Ulcombe Road to the east and houses fronting the A274 to the west. The land is agricultural, and is located within the countryside in the Maidstone Local Plan 2000. Parts of the Site adjoin the settlement boundary of the village of Headcorn. Headcorn is 15 km south of Maidstone town centre, which is accessed via the A274.
The application for planning permission was submitted on 21 April 2015. It followed an earlier application made in 2014 which was not determined in time by MBC, and so was appealed on that basis. MBC indicated on 17 April 2015 that it would have granted planning permission, which prompted the second application.
The application was supported by a Transport Assessment by DHA Transport, which assessed the increased traffic which would be generated by the new homes on Site and the impact on local traffic. The assessment was predicated upon 270 homes but only 220 homes were included in the proposal. The scope of the assessment was agreed with KCC Highways, and it did not include the cumulative impact of congestion in the A274 corridor south of Maidstone.
The Claimant objected to the application, relying inter alia, upon the recommendation on 28 January 2015 by MBC's Planning, Transport and Development Overview & Scrutiny Committee that this Site ought not to be allocated in the Local Plan for a range of reasons, including highway congestion.
On 29 May 2015, KCC submitted its comments on the application, as the highways authority. It expressed concerns about local traffic problems near the access to the site, but it made no reference to the cumulative impact of traffic on the A274 south of Maidstone. Subject to the specific issues raised, it did not object to the proposal. Overall, it considered that the Site was in a reasonably sustainable location, close to village facilities and transport links.
On 29 May 2015, the Claimant requested a screening direction from the Secretary of State. It raised a number of environmental issues, including local traffic problems, but it did not refer to the cumulative impact of congestion in the A274 corridor south of Maidstone.
In about June 2015, Dr James Ker (a resident of Headcorn) sent a request to the Secretary of State to call in the application for his own determination.
On 30 June 2015, MBC adopted a screening opinion which determined that no Environmental Impact Assessment was required. The opinion found that the proposal was an urban development project within paragraph 10(b) of Schedule 2 to the EIA Regulations 2011, and exceeded the Schedule 2 threshold for consideration as it exceeded 150 dwellings and 5 hectares. In considering whether significant effects on the environment were likely, the opinion took into account the guidance in the indicative screening thresholds, noting that although the Site exceeded 5 ha (it was 8.6 ha), it was for only 220 houses, significantly below the threshold of 1,000 houses. Taking into account other proposed developments in the Headcorn area, the number rose to 455 houses.
In assessing the proposal against the criteria in Schedule 3 to the EIA Regulations 2011, the material finding in the screening opinion on road use was:
"(e) pollution and nuisances
The main implication for pollution and nuisances would be through an increase in traffic (air quality and noise) during construction and once occupied. However, I do not consider this scale of development would result in significant levels of pollution or noise from its use to warrant an ES …."
There was no consideration of the cumulative impact of congestion in the A274 corridor south of Maidstone.
On 9 July 2015, MBC resolved to grant planning permission. The planning officer's report analysed the material which had been received in respect of highways issues at paragraphs 7.20 to 7.27, including the assessment of additional traffic generated by the development, objections from the Claimant and local residents, and the comments by KCC, consulted in its capacity as the highways authority. None of the material referred to the cumulative impact of congestion in the A274 corridor south of Maidstone. The report concluded:
"Overall, it is considered the accesses would be safe and that the impact of additional traffic on local roads and junctions would, or could be made acceptable through improvement, with no objections raised by the Highways Authority. It is noted that the NPPF at paragraph 32 advises that development should only be refused on transport grounds where residual cumulative impacts of development are severe, which is not the case here, subject to mitigation. As such, any highways impacts are not considered grounds for refusal."
On 15 July 2015, the Secretary of State directed MBC not to grant permission without specific authorisation, to enable him to consider whether he should direct that the application be referred to him for determination.
On 23 July 2015, MBC's Strategic Planning, Sustainability and Transportation Committee recommended that the Site be reinstated as part of the allocation in the Local Plan.
In an email dated 13 August 2015, Dr Ker wrote to the Secretary of State, pursuant to his request for the application to be called in. He provided a detailed critique of the Transport Assessment, on the basis inter alia that it was at odds with the concerns of KCC as expressed by Mrs Cooper in correspondence with MBC about the cumulative impact of traffic on the A229 and A274 south of Maidstone, generated by proposed developments. He annexed Mrs Cooper's letters dated 20 January 2015 and 23 July 2015.
On 19 August 2015, Dr Ker sent a further email to the Secretary of State asking him to take into account further letters from Mrs Cooper to MBC dated 13 and 17 August 2015, a reply from MBC dated 17 August 2015, and a KCC briefing note.
On 2 November 2015, the Secretary of State refused the request to call-in the application.
On 2 November 2015, the Secretary of State made a screening direction finding that, although the proposal was a Schedule 2 development under paragraph 10(b), the proposal was not likely to have significant effects on the environment and so was not EIA development. The statement of reasons said:
"In assessing the proposal the Secretary of State considers that transport and related impacts (i.e. pollution) together with flood related, landscape and ecology impacts arising from additional residential development in Headcorn are the main issues to be addressed.
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