No Adastral New Town Ltd v Suffolk Coastal District Council (First Defendant) The Secretary of State for Communities and Local Government (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson |
| Judgment Date | 07 February 2014 |
| Neutral Citation | [2014] EWHC 223 (Admin) |
| Docket Number | Case No: CO/11369/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 February 2014 |
[2014] EWHC 223 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Patterson
Case No: CO/11369/2013
Richard Buxton (instructed by Richard Buxton Environmental and Public Law, Cambridge) for the Claimant
Paul Shadarevian and Emma Dring (instructed by Suffolk Coastal District Council Legal Services) for the Defendant
Introduction
This is a claim under Section 113 of the Planning and Compulsory Purchase Act 2004 seeking an order that part of the provisions of the defendant's Suffolk Coastal District Council's Core Strategy (CS) be quashed in so far as it is necessary to ensure that the allocation of housing in the East of Ipswich Plan Area can be reconsidered on a lawful basis. In particular, the claimant seeks the quashing in whole or in part of policies SP2 — Housing Numbers and Distribution, SP19 — Settlement Policy and SP20 — East Ipswich Plan Area (EIPA).
The concern of the claimant is that together, the challenged policies provide the strategic housing allocation for 2000 homes east of the A12, to the south and east of Adastral Park. The allocation site is also referred to as Area 4. As explained below Adastral Park is a site in use for employment purposes.
The claimant is No Adastral New Town Limited (NANT), a local residents action group opposed to the Area 4 allocation. The group has participated throughout the CS process. The first defendant is the local planning authority for the Suffolk Coastal district.
The second defendant is the Secretary of State for Communities and Local Government who has taken no active role in the proceedings. He expressed the view, by letter dated 13 th January 2014, that the local planning authority would be best placed to defend the adoption of the CS.
The EIPA is a policy area which was designated by the East of England Plan (the Regional Spatial Strategy (RSS) in force during the preparation of the CS). The East of England Plan obliged the defendant to plan for a minimum of 10,200 new homes in the district over the period 2001–2021 with about 3200 of those being located in the EIPA.
The CS will set the framework for development within the Suffolk Coastal district until 2027. Throughout the plan preparation period the housing chapter of the CS was based on the housing requirement of the East of England Plan. The RSS housing requirements ceased to apply upon its revocation on the 3 rd January 2013. Notwithstanding that, the inspector who conducted the examination into the CS and found that the CS was sound on all matters, subject to amendments and an early review of housing numbers in 2015.
Adastral Park is an employment site owned and occupied by BT plc. Area or Option 4 is to the south and east of that employment site. A main concern on the part of the claimant is the proximity of the allocation in the CS to the Deben Estuary Special Protection Area (SPA). SPAs and Special Areas of Conservation (SACs) are also known as Natura 2000 sites. They are a network of sites with the highest level of nature conservation protection in both the European and domestic context. The closest part of the allocated site to the Deben Estuary is just over 1 kilometre from the eastern edge of the Deben Estuary SPA.
The CS was prepared over a period of six and a half years. There have been numerous versions of the CS in draft form and accompanying sustainability appraisals (SA) and appropriate assessments (AA) as the plan process has proceeded, options refined and policy direction developed. There have been also various rounds of public consultation and numerous committee, cabinet and council meetings.
The CS was the subject of an independent examination before an inspector who held examination hearings between 23rd October and 15 th November 2012. The inspector issued a report on 6th June 2013 which confirmed that the CS was sound. On the 5 th July 2013 the council resolved to adopt the CS.
Claimant's Grounds
The claimant challenges the decision of the defendant on the following grounds:
i) that the defendant has failed to comply with the Strategic Environmental Assessment Directive (2001/42/EU) implemented in domestic law by the Environmental Assessment of Plans and Programmes Regulations 2004;
ii) that the defendant has failed to comply with the Habitats Directive (92/43/EEC) implemented in domestic law by the Conservation of Habitats and Species Regulations 2010 (2010 Regulations) in that the appropriate assessment was not carried out at a sufficiently early stage to inform the defendant about the potential impact of residential development on the Deben Estuary SPA;
iii) that in further contravention of the Habitats Directive and 2010 Regulations the mitigation relied upon within the CS was too uncertain;
iv) that adopted policy SP20 is undeliverable.
The claimant sought to add grounds (ii) and (iv) at the substantive hearing. The grounds were so closely related to the original grounds of challenge and no prejudice was said to be suffered by the defendant who had prepared a skeleton argument dealing with them. In those circumstances I allowed the claim to proceed on all the grounds set out.
Legal framework
Preparation of Development Plan documents
Section 15 of the Planning and Compulsory Purchase Act 2004 requires local planning authorities to maintain "a local development scheme". The scheme is a plan on the part of each local authority for the preparation of local development documents which are either known as Development Plan documents (DPDs) or supplementary planning documents (SPDs). Together, they make up the Local Development Framework (LDF). The LDF comprises a folder of documents for delivering the spatial planning strategy for the area. The documents comprise a CS for delivering the spatial strategy and vision for the area where polices are location rather than site specific, a proposals section with a proposals map to cover site specific policies and proposals and area action plans for the key areas of change or conservation. The DPDs become, by virtue of Section 38(3) of the Planning and Compulsory Purchase Act 2004, the Development Plan for the area. Until the revocation of the RSS that was also part of the Development Plan.
Where a determination is to be made on a planning application if regard is to be had to the development plan that determination must be made in accordance with the Development Plan unless material considerations indicate otherwise: Section 38(6) Planning and Compulsory Purchase Act 2004.
Under section 19 of the Planning and Compulsory Purchase Act 2004 DPDs are to be prepared in accordance with the local development scheme. Subsection (5) reads,
"The local planning authority must also-
a) carry out an appraisal of the sustainability of the proposals in each (Development Plan document);
b) prepare a report on the findings of the appraisal."
That is known as the sustainability appraisal (SA).
The process involves a submission by the Local Planning Authority of every Development Plan document to the Secretary of State for independent examination. Section 20(5) reads,
"(5) The purpose of an independent examination is to determine in respect of the development plan document—
(a) whether it satisfies the requirements of sections 19 and 24(1), Regulations under section 17(7) and any Regulations under section 36 relating to the preparation of development plan documents;
(b) whether it is sound."
The preparation of a Development Plan document is governed by Regulations made under Section 36 of the Planning and Compulsory Purchase Act 2004.
The CS was largely prepared under the Town and Country Planning (Local Development) (England) Regulations 2004 which were in force until April 5 th 2012. Regulation 7 of the 2004 Regulations provides that CS and area action plans must be in the form of Development Plan documents. Regulation 30 (1)(a) prescribes the SA report for the DPD as one of the documents to be sent to the Secretary of State for his consideration under Section 20(3) of the Planning and Compulsory Purchase Act 2004 for independent examination.
The Town and Country Planning (Local Planning) (England) Regulations 2012 came into force on the 6 th April 2012. Under Regulation 20 any person may make representations to a local planning authority about a local plan which the Local Planning Authority proposes to submit to the Secretary of State. Regulation 22 sets out a list of prescribed documents for the purpose of Section 20(3) of the Planning and Compulsory Purchase 2004 Act including the SA. The person appointed to carry out the independent examination under section 20 makes a recommendation to the Local Planning Authority and has to consider any representations made in accordance with Regulation 20. Under Regulation 25 the Local Planning Authority must make the recommendations of the person appointed and the reasons given by that person for those recommendations available to the public in accordance with Regulation 35. If asked to do so by the local planning authority the person appointed to carry out the examination must recommend modifications of the document that would make it one that satisfied the requirements of section 20(5)(a) and was sound. The recommendations made are binding on the Local Planning Authority. The Local Planning Authority may...
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