Norton St. Philip Parish Council v Mendip District Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 16 December 2022 |
| Neutral Citation | [2022] EWHC 3432 (Admin) |
| Docket Number | Case No: CO/323/2022 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2022] EWHC 3432 (Admin)
THE HON. Mr Justice Holgate
Case No: CO/323/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Alexander Greaves (instructed by DLA Piper UK LLP) for the Claimant
Hashi Mohamed (instructed by Mendip District Council) for the Defendant
Robert Williams (instructed by the Government Legal Department) for 1 st Interested Party
James Findlay KC and Ben Du Feu for (instructed by Town Legal) for Second and Third Interested Parties
Hearing dates: 18 and 19 October 2022
JUDGMENT APPROVED
This judgment was handed down remotely at 10.30am on 16 December 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is a challenge brought by Norton St. Philip Parish Council under s.113 of the Planning and Compulsory Purchase Act 2004 (“PCPA 2004”) against the decision by the defendant, Mendip District Council (“MDC”) on 20 December 2021 to adopt the Mendip District Local Plan 2006–2029 Part II: Sites and Policies (“LPP2”). This Plan complements the Mendip District Local Plan 2006–2029 Part I: Strategy and Policies (“LPP1”). They form part of the statutory development plan for the district of Mendip in Somerset.
At the heart of the challenge lie Core Policies 1 and 2 (“CP1” and “CP2”) of LPP1. Policy CP1 sets out the spatial strategy for the District, distributing development between its hierarchy of settlements, directing the “majority of development” towards the five principal settlements, the towns of Frome, Glastonbury, Shepton Mallet, Street and Wells. Policy CP2 sets the District's overall housing requirement at 9,635 homes over the plan period. Largely as the result of a decision to extend that period from 2028 to 2029 that figure included an additional 505 homes, but no work was carried out at that stage to identify where in the District that development should be located. That was left to be considered in LPP2.
There are two central issues in this challenge. First, whether the Inspector who conducted the independent examination of LPP2 under the PCPA 2004 and/or MDC misinterpreted LPP1 as requiring all of the 505 dwellings to be located in the north-east of the District, rather than considering their distribution across the District in accordance with the spatial strategy. Second, did MDC fail to comply with regulation 12(2)(b) of the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004 No. 1633) (the “2004 Regulations”) by failing to consider through their sustainability appraisal any alternative locations to allocating the 505 dwellings in the north-east of the District?
The towns of Midsomer Norton and Radstock straddle the north-eastern boundary of Mendip District with the District of Bath and North East Somerset Council (“BANES”). They mainly lie within the area of BANES. The upshot of the examination of LPP2 was that the Plan was modified so as to allocate land for 455 dwellings on the fringes of Midsomer Norton through policies MN1, MN2 and MN3. The largest of these sites, land at White Post, would provide 250 homes (Policy MN1). In addition LPP2 allocates land off Mackley Lane, Norton St. Philip for 27 dwellings (Policy NSP1) and land off Great Dunns Close, Beckington for 28 dwellings (Policy BK1). Overall, LPP2 allocates land for 510 dwellings to satisfy the requirement for 505 units. The claimant and BANES objected to these allocations in the examination process.
The claimant seeks relief by way of an order for remittal in respect of Policies MN1, MN2, MN3, NSP1 and BK1 and related text. No other part of LPP2 would be affected.
The Secretary of State for Levelling Up, Housing and Communities has been joined as the first interested party because of the criticisms made by the claimant of the Inspector who conducted the examination of LPP2.
The second and third interested parties (“the developers”) were represented jointly. Lochailort Investments Ltd owns the site allocated by Policy NSP1. Redrow Homes Limited has an option to acquire the site allocated by Policy BK1. Both participated in the examination process.
I am grateful to all counsel for their written and oral submissions.
Legal Framework for development plans and statutory review.
The legal framework for the preparation, examination and adoption of development plans and for legal challenges under s. 11 of the PCPA 2004 has been set out in many authorities and need not be repeated here (see for example Aireborough Neighbourhood Development Forum v Leeds City Council [2020] EWHC 1461 (Admin) at [64]–[72]; Keep Bourne End Green v Buckinghamshire Council [2021] JPLI 81 at [42]–[58]; Flaxby Park Limited v Harrogate Borough Council [2021] JPL 833 at [21]–[38] and [124]–[127]).
As part of the preparation of a development plan, s.19(5) of the PCPA 2004 requires the local planning authority to carry out an appraisal of the sustainability of the proposals in the plan and to prepare a report of the findings of that appraisal (a sustainability appraisal or “SA”). Section 19(5) integrates the requirements for Strategic Environmental Assessment (“SEA”) and the preparation of an environmental report under the 2004 Regulations (transposing Directive 2001/42/EC) with the statutory process under the PCPA 2004 for the preparation, examination and adoption of a development plan. In practice, a sustainability appraisal will be prepared under s.19(5) so as to satisfy the requirement in the 2004 Regulations for an “environmental report” ( Flaxby at [26]). One of the purposes of the examination is to determine whether the requirements of s. 19 of the PCPA 2004, and hence of the 2004 Regulations, have been met (s. 20(5)(a)). It is well established that a breach of those Regulations is a potential ground of challenge under s. 113.
A further purpose of the examination is to determine whether the plan is “sound” (s. 20(5)(b)). A plan cannot be adopted unless it is determined by the Inspector to be sound (s. 20(7A) and s. 23(2)). If an Inspector is minded to conclude that a plan is unsound in one or more respects, then, if asked to do so by the local planning authority, he must recommend “main modifications” of the plan so as to make it sound (s. 20(7C)). The authority is then empowered to adopt the plan with those modifications (s. 23(3)). Accordingly, the judgment made by an Inspector as to whether a submitted plan (with any “main modifications”) is sound is crucial to the legal ability of the local authority to adopt that document as part of its development plan ( Keep Bourne End Green at [58]).
The legislation does not define the concept of “soundness”. However, paragraph 35 of the NPPF provides guidance on the subject. A plan is sound if it is, inter alia:—
“a) Positively prepared – providing a strategy which, as a minimum, seeks to meet the area's objectively assessed needs; and is informed by agreements with other authorities, so that unmet needs from neighbouring areas is accommodated where it is practical to do so and is consistent with achieving sustainable development;”
b) Justified – an appropriate strategy, taking into account the reasonable alternatives, and based on proportionate evidence;
c) ……; and
d) …..”
The examining Inspector is obliged to give reasons for his conclusions on soundness and for the recommendations made (see s. 20(7) and (7A) and, in relation to s. 20(7C), see University of Bristol v North Somerset Council [2013] JPL 940 at [72]–[75] and CPRE Surrey v Waverley Borough Council v Secretary of State for Housing, Communities and Local Government [2020] JPL 505 at [72]). The legal standards for the duty to give reasons are set out in Save Britain's Heritage v Number 1 Poultry Limited [1991] 1 WLR 153 and South Bucks District Council v Porter (No.2) [2004] 1 WLR 1953.
In the CPRE case the Court of Appeal stated that the reasons given by an Inspector on the examination of a local plan may be more succinctly expressed than in a decision letter on a planning appeal. It is unlikely that he will need to set out the evidence of every participant. It will be sufficient if he conveys to a “knowledgeable audience” how he has decided the main issues before him. He may only need to set out the main parts of his assessment and the essential planning judgements he has made ([75]–[76]).
Neither an Inspector's report nor the decision of the authority should be subjected to “hypercritical scrutiny”. They should be read with reasonable benevolence and in a reasonably flexible way ( St Modwen Developments Limited v Secretary of State for Communities and Local Government [2018] PTSR 746 at [6]–[7] and R (Mansell) v Tonbridge and Malling Borough Council [2019] PTSR 1452 at [41]–[42]).
The court's jurisdiction under s. 113 is confined to the conventional public law principles of judicial review and statutory review ( Flaxby at [124]).
The principles governing the interpretation of planning policy are well established. They were summarised in Keep Bourne End Green at [77]–[78].
The policies of LPP1 and LPP2 and the process followed
LPP1
LPP1 was adopted on 15 December 2014. The Plan set out an overall spatial strategy for the District, specific policies for each of the five towns in the District and broad principles to direct how development will take place across the rural areas. The Plan also contained strategic allocations of land for development and identified Future Growth Areas. LPP2 was to deal with the non-strategic allocation of land and more detailed...
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Lochailort Investments Ltd v Somerset Council (Formerly Mendip District Council)
...by the former Mendip District Council (“MDC”) of the Mendip District Local Plan 2006–2029 Part II: Sites and Policies (“LPP2”) ( [2022] EWHC 3432 (Admin)). That decision had been taken on 20 December 2 The court ordered that 5 allocations of housing sites be remitted and that MDC should re......