Linda Kendall v Rochford District Council (First Defendant) Secretary of State for Communities and Local Government (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lindblom |
| Judgment Date | 19 December 2014 |
| Neutral Citation | [2014] EWHC 3866 (Admin) |
| Docket Number | Case No: CO/1531/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 December 2014 |
[2014] EWHC 3866 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lindblom
Case No: CO/1531/2014
Ms Jenny Wigley (instructed by Richard Buxton Solicitors) for the Claimant
Mr Juan Lopez (instructed by the solicitor for Rochford District Council) for the First Defendant
Hearing dates: 17, 18 and 19 June, and 3 October 2014
Introduction
This case is about the lawfulness of the public consultation undertaken by a local planning authority when preparing a development plan document under the provisions for plan-making in the Planning and Compulsory Purchase Act 2004 ("the 2004 Act").
The claimant, Mrs Linda Kendall, is a resident of Rayleigh in Essex, which is in the administrative area of the first defendant, Rochford District Council. By an application under section 113 of the 2004 Act she challenges the council's adoption, in February 2014, of the Rochford District Allocations Plan. She was an objector to the plan during its preparation, and, in September 2013, took part in the examination held by the inspector appointed by the second defendant, the Secretary of State for Communities and Local Government. She now seeks an order to quash the plan, at least in part. She says there were serious flaws in the council's notification and consultation of herself and others during the plan-making process and also, before that, in the preparation of the Rochford District Core Strategy – in breach, she says, of the relevant statutory requirements for plan-making and the regime for Strategic Environmental Assessment ("SEA"). The council resists the application. It maintains that the plan process was, at every stage, transparent, inclusive and fair. It says it complied with all of the relevant requirements for consultation. In his acknowledgment of service the Secretary of State said he intended to resist the application, but he later decided to take no further part in the proceedings.
On 11 June 2014 I made an order granting costs protection to Mrs Kendall at the level applicable to Aarhus Convention claims under CPR r.45.43 and PD 45, namely £5,000, with a reciprocal cap of £35,000 on the council's potential liability in costs. I did so for this reason. Although it is not a "claim for judicial review" but a statutory challenge, the substance of Mrs Kendall's application to the court is clearly within the ambit of the Aarhus Convention, and in my view justified the exercise of the court's general discretion as to costs to give both her and the council the level of protection to which they would have been entitled under the arrangements in CPR r.45.43. Since I made that order the Court of Appeal has, on 27 November 2014, allowed the appeal in Secretary of State for Communities and Local Government v Venn [2014] EWCA Civ 1539. It held that the costs protection regime introduced by CPR 45.41 does not comply with the Aarhus Convention because it excludes statutory appeals and applications, and that this systemic flaw cannot be remedied by an exercise of judicial discretion but will require action by the legislature (see paragraphs 34 and 35 in the judgment of Sullivan L.J, with whom Gloster and Vos L.JJ. agreed).
The issues for the court
The parties agree that the grounds of Mrs Kendall's application raise three main issues for the court:
(1) whether the inspector's conclusion that, in preparing the allocations plan, the council had complied with its statement of community involvement and had thus discharged its duty under section 19(3) of the 2004 Act, was irrational (ground 1 of the application);
(2) whether, in the preparation of the allocations plan, the council failed to comply with article 6 of Directive 2001/42/EC "on the assessment of the effects of certain plans and programmes on the environment" ("the SEA directive") and with regulation 13 of the Environmental Assessment of Plans and Programmes Regulations 2004 ("the SEA regulations") (ground 2); and
(3) if the council had also failed to comply with article 6 of the SEA directive and regulation 13(2) of the SEA regulations when preparing its core strategy, whether the inspector ought to have acted to make good any harm caused by those failures, having regard to the provisions of regulation 8(4) and (5) of the Town and Country Planning (Local Planning) (England) Regulations 2012 ("the 2012 regulations") relating to the consistency of a local plan with the adopted development plan (ground 3).
The statement of community involvement
On 18 January 2007, under the Town and Country Planning (Local Development) (England) Regulations 2004, the council adopted its statement of community involvement as part of its local development framework.
In section 1 of the statement of community involvement its three objectives are set out:
"1. To engage effectively with all sections of the community;
2. To use appropriate engagement techniques targeted at the area of concern to ensure that resources are used effectively and efficiently; and
3. To use the engagement process to improve the quality of decision-making in the district with regard to planning."
The "benefits of community involvement" in planning are summarized in section 2. The benefits identified include "[a] chance for local people to influence the decisions that affect how land is used, and what development takes place, in their district", "[development] of the district that better reflects the view of affected people", "[an] increased understanding of the issues and concerns that people have with regard to the district" and "[an] input of local knowledge and expertise into the planning system". In section 3, on "Participation", the ways in which the council "will encourage the involvement of all communities in planning" are described. Two of the aims stated here are "[being] accessible to members of the public through a variety of media in order to explain to people how and when they can have their say" and "[recognising] that not everyone has access to electronic communications".
Section 5 is entitled "Public Engagement Techniques". It says that the council "recognises the need to enable people to participate, to put in place mechanisms that allow people to have their voices heard". It explains how this will be done. It says that "[a] variety of techniques will be used in an attempt to engage with as wide a range of people as possible, subject to time and resource constraints". It identifies nine particular techniques: "Public meetings", "Public exhibitions", "Existing community groups and voluntary organisations", the council's newsletter "Rochford District Matters", "Other local media", "Electronic media", "Access to Planning Officer advice", "Representative groups and bodies", and "Planning Aid". Short comments are made on each technique, including these:
"Rochford District Matters is a quarterly newsletter that is produced by the Council and sent to every household in the district. This newsletter will be used to keep people up-to-date with the latest planning issues and provide information on how they can get involved.
Other local media. The Council will use other local media to keep people informed of planning matters, this will be primarily through notices in local newspapers. Rochford District Council acknowledges that notices placed in local newspapers will not be seen by everyone and will use this as a method of informing the public in conjunction with other techniques.
Electronic media. The Council's website provides a mechanism through which the public can be kept informed of planning matters. The Council will also use electronic media to receive comments from members of the public. Rochford District Council does recognise that not everyone has access to electronic media and will use this method only in conjunction with other forms of participation."
The comment on "Representative groups and bodies" confirms that the council will "directly consult in writing a number of bodies and groups in the preparation of the Local Development Framework", including "elected representative bodies such as Parish Councils", and that "[such] groups can be [a] useful source of local opinion and information". However, the council "recognises that not all members of a community will share the same views and opinions", and will therefore "not rely simply on comments from bodies to speak for the people they represent, but will also seek the views of individuals". Table 2a indicates which of the nine techniques relate to each stage of plan-making: "Pre-draft consultation", "Pre-submission public participation stage" and "Submission stage (tests of soundness)". "Rochford District Matters" is mentioned only in the part of the table relating to "Pre-draft consultation". Table 2b indicates which techniques may be used for whom. For the "Wider public" all nine techniques are listed.
Section 6 explains the ways in which people will be able to put forward their views on the local development framework. As well as public meetings and exhibitions, it refers to the use of questionnaires, which "will be made available on the Council's website, at the Council's offices and will be sent out by post on request".
Section 12, "Resourcing and Reviewing the Statement of Community Involvement", says that the "measure of the success" of the statement of community involvement will include three considerations. The first is...
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