JJ Gallagher Ltd and Others v Cherwell District Council and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson |
| Judgment Date | 18 February 2016 |
| Neutral Citation | [2016] EWHC 290 (Admin) |
| Docket Number | Case No: CO/4622/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 February 2016 |
[2016] EWHC 290 (Admin)
The Hon. Mrs Justice Patterson DBE
Case No: CO/4622/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT BIRMINGHAM
Birmingham Civil Justice Centre
Priory Courts, 33 Bull Street, Birmingham, B4 6DS
Satnam Choongh (instructed by Pinsent Masons LLP) for the Claimants
Hugh Flanagan (instructed by Cherwell District Council) for the First Defendant
Richard Kimblin (instructed by the Government Legal Department) for the Second Defendant
Hearing date: 9 February 2015
Introduction
This is an application under section 113(3) of the Planning and Compulsory Purchase Act 2004 ("PCPA") for an Order that "Policy Bicester 13 adopted by the first defendant on 20 July 2015 be treated as not adopted and remitted to the second defendant." Policy Bicester 13 appears in the Cherwell Local Plan ("CLP").
The claimants have an interest in land at Gavray Drive, Bicester. That land is allocated in the CLP as Bicester 13.
The first defendant is the Cherwell District Council, local planning authority for the area which includes Bicester.
An inspector, Nigel Payne BSc (Hons), DipTP, MRTPI, MCMI, was appointed by the second defendant, the Secretary of State for Communities and Local Government to hold an examination into the CLP. He conducted hearings during 2014 and issued a report on 9 June 2015 recommending that the CLP be adopted, subject to modifications necessary to make the CLP sound.
On 20 July 2015 the full council of the first defendant resolved to approve the main modifications to the CLP, as recommended by the inspector, together with additional modifications to enable the CLP to proceed to adoption. The CLP was adopted by Order dated the 20 July 2015.
The claimant submits that in adopting the CLP the first defendant erred in law because:
i) Policy Bicester 13 fails to give effect to the inspector's reasons and adopting it as it stands is illogical and irrational;
ii) Policy Bicester 13 is inconsistent with policy ESD11 of the CLP and so the decision to adopt is illogical and irrational on the basis of its current wording also;
iii) The inspector failed to provide reasons for recommending adoption of policy Bicester 13 as drafted so that the first defendant's decision to adopt the plan is unlawful.
The first defendant agrees that policy Bicester 13 must be quashed on the basis that the inspector's reasoning was inadequate but disagrees with the claimants about the terms of the Order remitting the CLP to the second defendant.
The second defendant disagrees with both the claimants and the first defendant. The second defendant contends that the policy Bicester 13 is ambiguous and a judgment of the court is sufficient to resolve any ambiguity. Accordingly, there is no need for policy Bicester 13 to be remitted at all.
The relevant parts of CLP policy Bicester 13 read:
"Development Area: 23 hectares
Development Description: a housing site to the east of Bicester town centre. It is bounded by railway lines to the north and west and the A4421 to the east.
Housing:
• Number of homes – 300 dwellings
• Affordable Housing – 30%.
…
Key site specific design and place shaping principles:
•…
• That part of the site within the Conservation Target Area should be kept free from built development. Development must avoid adversely impacting on the Conservation Target Area and comply with the requirements of Policy ESD11 to secure a net biodiversity gain."
The supporting text to the policy reads:
"C104. The majority of the site is part of the River Ray Conservation Target Area. Part of the site is a Local Wildlife Site and is situated to the east of Bicester town centre. It is bounded by railway lines to the north and west. The site comprises individual trees, tree and hedgerow groups, and scrubland/vegetation. The Langford Brook water course flows through the middle of the site.
C105. The central and eastern section of the site contains lowland meadow, a BAP priority habitat. There are a number of protected species located towards the eastern part of the site. There are several ponds and a small stream, known as the Langford Book, which runs from north to south through the middle of the site. A range of wildlife has been recorded including butterflies, great crested newts and other amphibians, reptiles, bats and birds.
C106. There are risks of flooding on some parts of the site therefore mitigation measures must be considered. There is also a risk of harming the large number of recorded protected species towards the eastern part of the site. Impacts need to be minimised by any proposal. Approximately a quarter of the site is within Flood Zones 2 and 3 therefore any development would need to be directed away from this area.
C107. Although there are a number of known constraints such as Flood Zone 3, River Ray Conservation Target Area and protected species, this could be addressed with appropriate mitigation measures by any proposal."
Policy ESD11, referred to in Bicester 13, is entitled 'Conservation Target Areas'. That reads:
"Where development is proposed within or adjacent to a Conservation Target Area biodiversity surveys and a report will be required to identify constraints and opportunities for biodiversity enhancement. Development which would prevent the aims of a Conservation Target Area being achieved will not be permitted. Where there is potential for development, the design and layout of the development, planning conditions or obligations will be used to secure biodiversity enhancement to help achieve the aims of the Conservation Target Area."
The Gavray Drive site is subject to different designations on the eastern part of the site beyond Langford Brook. The Conservation Target Area (" CTA") and Local Wildlife Site ("LWS") overlap within the site but are not coterminous.
Factual Background
The CLP examination commenced on 3 June 2014. The site was not included as an allocation. The examination was immediately suspended by the inspector to allow the first defendant to put forward modifications that would address the need for additional housing sites.
The first defendant consulted on and submitted proposed modifications to the CLP. One of the modifications included the allocation of the Gavray Drive site for 300 houses.
The claimants responded to the consultation on the proposed modification. They supported the principle of the allocation but argued that, "As drafted the policy can be read as precluding any development within the River Ray Conservation Target Area which we are sure was never the intention". Policy ESD11 Conservation Target Areas does not seek to restrict development within CTAs but instead states, "Where development is proposed within or adjacent to Conservation Target Areas biodiversity surveys and a report will be required to identify constraints and opportunities for biodiversity enhancements." The response continued that, "Development on the part of the CTA outside the Local Wildlife Site would be balanced through securing the long term restoration, management, maintenance and enhancement of part of the local wildlife site within the developer's control." The claimants put forward an amendment to policy Bicester 13 to delete the opening sentence of the relevant bullet point which stated, "That part of the site within the Conservation Target Area should be kept free from built development."
Examination into the CLP commenced on 21 October 2014.
At the examination before the inspector the first defendant, supported by members of the public, argued that there should be no built development on any part of the allocated site designated as a CTA.
The day before the examination commenced the first defendant passed a resolution that sought a modification to the policy that would designate the CTA as "Local Green Space" within the meaning of paragraph 76 of the National Planning Policy Framework ("NPPF").
The examination hearings concluded on 23 December 2014.
The inspector issued a final report on 9 June 2015.
Prior to then the first version of the draft report had been sent to the first defendant on 22 May 2015 for fact checking. The first defendant sent comments to the second defendant on that version including some on Policy Bicester 13. At that time paragraph 139 of the report read:
"Requests that the developable area shown on the policies map should be reduced to avoid any building in the whole of the River Ray Conservation Target Area, as distinct from the smaller Local Wildlife Site, would significantly undermine this contribution. It would also potentially render the scheme unviable or at the very least unable to deliver a meaningful number of new affordable units, as required under policy BSC 3, when all other necessary contributions are also taken into account. Moreover, it could well materially reduce the potential for the scheme to contribute to enhancement of the Local Wildlife Site's ecological interest as part of the total scheme, thereby effectively achieving the main objective of the Conservation Target Area. Consequently, it would not represent a reasonable, realistic or more sustainable alternative to the proposals set out in the plan, as modified."
Version two of the report was received by the first defendant shortly after receipt of the representations and included a change to paragraph...
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