Persimmon Homes (Thames Valley) Ltd and Others v Stevenage Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Lloyd,Lord Justice Wall |
| Judgment Date | 22 November 2005 |
| Neutral Citation | [2005] EWCA Civ 1365 |
| Docket Number | Case No: 2005/1240 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 November 2005 |
[2005] EWCA Civ 1365
Lord Justice Laws
Lord Justice Wall and
Lord Justice Lloyd
Case No: 2005/1240
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
HIS HONOUR JUDGE MOLE
(SITTING AS A JUDGE OF THE HIGH COURT)
CO/232/2005
Robin Purchas Q.C. and Douglas Edwards (instructed by Davies & Partners) for the Appellants
Timothy Straker Q.C. and Richard Humphreys (instructed by the Borough Solicitor) for the Respondent
INTRODUCTORY
This is an appeal against the decision of HHJ Mole QC sitting as a deputy High Court Judge in the Administrative Court on 20 May 2005. The litigation arises out of the adoption on 8 December 2004 by the respondent Borough Council (to which I shall refer as "SBC") of the Stevenage District Plan Second Review 1991–2011 ("the SLP"). The appellants, who are a consortium interested in the residential development of land to the west of the A1(M) at Stevenage, applied to the court under s.287 of the Town and Country Planning Act 1990 as amended ("the 1990 Act") for an order to quash the adoption of the SLP on two grounds, which have been referred to as (1) the general conformity ground and (2) the green belt ground. The judge dismissed the claim relating to ground (1) but allowed it in respect of ground (2). This appeal is only concerned with ground (1). Permission to appeal was granted by Mummery LJ on consideration of the papers on 11 July 2005.
The appellants have applied to the SBC for planning permission for residential development of land which lies in part within the administrative boundary of Stevenage Borough and part within the administrative boundary of North Hertfordshire District, and wholly within the County of Hertfordshire. The First Secretary of State called in the applications, an inquiry was held, and the inspector's report was submitted to the Secretary of State in late 2004. No decision has yet been made. This appeal has been expedited, the appellants having submitted that the Secretary of State ought to have the benefit of this court's view of ground (1) before arriving at his conclusion on the planning applications.
THE STATUTORY BACKGROUND
The case concerns an aspect of the relationship between the Structure Plan for the County of Hertfordshire and the Local Plan for the District of Stevenage. In Hertfordshire, as in other non-metropolitan counties in England, it was the responsibility of the county planning authority to produce the structure plan, and that of the district planning authorities to produce local plans for their areas. By s.54 of the 1990 Act the structure plan and the local plan, and any alterations to either, constituted "the development plan for any district outside Greater London and the metropolitan counties". I should set out s.54A:
"Where, in making any determination under the Planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."
The scheme of the 1990 Act is principally in play in these proceedings. However the development plan process, and indeed the meaning of "development plan", have recently been changed by measures contained in the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") so as to introduce, among other things, the new concept of a "regional spatial strategy" ("RSS"). Some of the provisions of the 2004 Act, coming into effect on 28 September 2004 (the commencement date of s.38), are material to the issues in this case. The successor to s.54A is s.38(6) of the 2004 Act:
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
This provision will apply to the Secretary of State's consideration in due course of the appellants' called-in applications.
S.31(2) of the 1990 Act required that a structure plan should contain "a written statement formulating the authority's general policies in respect of the development and use of land in their area". S.31(6) obliged the authority "[i]n formulating their general policies" to have regard among other things to strategic planning guidance given by the Secretary of State and current national policies. Where the authority adopted or approved an alteration or replacement of a structure plan, they were obliged by s.35C to supply "any authority responsible for a local plan in their area" with a statement that the local plan was or was not in general conformity with the altered or new structure plan.
The duty to prepare a local plan was imposed on district planning authorities by s.36(1) of the 1990 Act. S.36(2) provided:
"A local plan shall contain a written statement formulating the authority's detailed policies for the development and use of land in their area."
S.36(4) provided: "A local plan shall be in general conformity with the structure plan". A local plan (in contrast to a structure plan: see s.31(5) and paragraph 5 of the Town and Country Planning (Development Plan) (England) Regulations 1999) had to contain a map: s.36( 6). S.36(9)(a) required authorities, in the formulation of their detailed policies, to have regard to considerations prescribed by the Secretary of State. Accordingly the SBC, when it came to revise the draft local plan, was obliged to have regard to the Secretary of State's policy document PPG3 issued in March 2000, to which I will refer below. S.43 provided for the adoption by the local planning authority of proposals for a local plan or for its alteration or replacement. S.43(3) stated: "The authority shall not adopt any proposals which do not conform generally to the structure plan". S.43(4) allowed the Secretary of State to direct the modification of proposals submitted to him if he considered them to be "unsatisfactory". S.46 was concerned with conformity between the structure plan and local plans, requiring the structure plan authority to issue a statement to the effect that the local plan or proposals which had been served on them were, or were not, in general conformity with the structure plan (s.46(2)). Where the statement is to the effect that the plan or proposals are not in general conformity, it falls to be treated as an objection to the plan or proposals in accordance with the relevant regulations (s.46( 4)). S.24 of the 2004 Act, which I will not set out, made provision for general conformity between what in that statute's language were called "the local development documents" and the RSS.
S.46(10) of the 1990 Act provided:
"The provisions of a local plan prevail for all purposes over any conflicting provisions in the relevant structure plan unless the local plan is one —
(a) stated under section 35C not to be in general conformity with the structure plan; and
(b) neither altered nor replaced after the statement was supplied."
The provision made by the 2004 Act for the resolution of conflicts between plans differs somewhat from that contained in s.46( 10). S.38(5) of the 2004 Act provides:
"If to any extent a policy contained in a development plan for an area conflicts with another policy in the development plan the conflict must be resolved in favour of the policy which is contained in the last document to be adopted, approved or published (as the case may be)."
Schedule 8 to the 2004 Act contains transitional provisions. Their effect in part is to preserve in being the Hertfordshire Structure Plan, to whose history I shall come shortly, until 28 September 2007, or until the date (if earlier) of the adoption or approval of a new plan in its place. Paragraph 9 of Schedule 8 preserves in this case (given the relevant dates) the procedure for the adoption of the local plan prescribed by the 1990 Act. Paragraph 12 has effect to continue the SLP in being until 8 December 2007 unless it is replaced meantime. A new provision, which had no analogue in the 1990 Act, is to be found in paragraph 11 of Schedule 8:
"11(1) This paragraph applies if the Secretary of State thinks —
(a) that the conformity requirement is likely to give rise to inconsistency between the proposals and relevant policies or guidance, and
(b) that it is necessary or expedient to avoid such inconsistency.
(2) The Secretary of State may direct that to the extent specified in the direction the conformity requirement must be ignored.
(3) The Secretary of State must give reasons for the direction.
(4) The conformity requirement is —
(a) the requirement under s.36(4) of the [1990] Act that the local plan is to be in general conformity with the structure plan;
(b) the prohibition under s.43(3) of the [1990] Act on the adoption of proposals for a local plan or for its alteration or replacement which do not conform generally with the structure plan."
Lastly while dealing with the statutory material I should refer to s.287 of the 1990 Act, which as I have foreshadowed confers the High Court's jurisdiction to entertain these proceedings. I need not set it out. It is enough for present purposes to say that it creates a form of statutory judicial review of a range of planning decisions, certainly including the adoption by the SBC of the SLP.
THE HISTORY
The immediate focus of the appellants' challenge, as I have foreshadowed, is the...
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