R CK Properties (Theydon Bois) Ltd v Epping Forest District Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 29 June 2018 |
| Neutral Citation | [2018] EWHC 1649 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/997/2018 |
| Date | 29 June 2018 |
[2018] EWHC 1649 (Admin)
THE HONOURABLE Mr Justice Supperstone
Case No: CO/997/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Christopher Lockhart-Mummery QC (instructed by Howes Percival LLP) for the Claimant
Mark Beard (instructed by Epping Forest District Council) for the Defendant
Hearing dates: 23 & 24 May 2018
Judgment Approved
Introduction
The Claimant challenges the lawfulness of the decision of Epping Forest District Council (“the Council”) taken on 14 December 2017 (“the Decision”) to agree and publish the Draft Epping Forest District Local Plan (Submission Version 2017) (“the 2017 Draft LP”), in accordance with Regulation 19 of Part 6 of the Town and Country Planning (Local Planning) (England) Regulations 2012 (as amended) (“the 2012 Regulations”) and thereafter submission to the Secretary of State for independent examination under s.20 of Part 2 of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”).
The Claimant is a development company which wishes to develop approximately 133 homes on the site owned and promoted by the Claimant known as “Land East of Central Line/North of Abridge Road (including The Old Foresters' Site), Theydon Bois” (“the Site”). The Council is the local planning authority for the area in which the Site is situated. Although the Site was allocated for residential development in the draft local plan for consultation in October 2016, it was excluded from the 2017 Draft LP which was approved at the Council's extraordinary Council meeting (“ECM”) on 14 December 2017.
On 20 March 2018 Lang J granted the Claimant permission to proceed with its claim for judicial review and restrained the Council from submitting the 2017 Draft LP to the Ministry of Housing, Communities and Local Government until final determination of these proceedings or further order.
The Factual Background
Between 30 July and 15 October 2012 the Council consulted on a document referred to as “Issues and Options Community Choices”.
Between October 2012 and October 2016 the Council prepared a draft local plan, and undertook a sustainability appraisal. In February 2013 the Council published its Statement of Community Involvement (“SCI”) pursuant to s.18 of the 2004 Act, which includes the following:
“ Local Plan
7. The Local Plan is a document which outlines policies which will influence development in the District up until 2033. Both the Local Plan and the supporting studies will be available to view on the Council's website.
Supporting documents
8. There are a number of studies which are used as background evidence to the main Local Plan document. The studies are used to help guide the policies that are going to be in the final document and perhaps identify options that are not feasible. These will be available from the Council offices or on the Council's website when they are finalised.”
There were a number of member and officer workshops relating to the site selection process. On 7 June 2016 at a local plan officer working group meeting a decision was made as to which sites should be allocated in the draft local plan. On 6 August 2016 a member workshop was held to review the sites identified for allocation.
Between 31 October and 12 December 2016 there was consultation on the draft local plan (draft October 2016). The draft local plan stated at para 5.5:
“The Council has identified potential sites for allocation for residential development and traveller accommodation, details of which are provided in the following sections. These sites have been identified following a rigorous application of the site selection methodologies and represent those sites the Council considers to be suitable, available and achievable within the Plan period based on available information.”
The Claimant's site was one of those identified for allocation at that stage. It was proposed to be allocated for residential development of approximately 133 homes.
In September 2017 the (then) Department for Communities and Local Government issued a consultation paper (Planning for the right homes in the right places: consultation proposals) which proposed to introduce a standard methodology for the calculation of housing need for the purposes, mainly, of local plans. The standard methodology would mean that the Council's housing requirement would rise from 514/518 dwellings per annum to 923 dwellings per annum. Over the plan period this would increase the required housing provision from some 11,400 to 20,306 homes. The proposal was that the standard methodology be used unless the relevant local plan was submitted for examination on or before 31 March 2018.
During 2017 the Council held workshops relating to the site selection process, for example, on 17 August and 18–19 October 2017, the latter being an officer workshop which was held in order that the proposed allocation sites could be “identified”. The Claimant's site passed all stages of the selection process completed before the officer workshop of 18–19 October 2017. However at the October meeting the Claimant's site was not identified for housing development.
On 28 November 2017 the Council conducted an all-member briefing on the local plan.
On 6 December 2017 the Non-Technical Summary of the Sustainability Appraisal was published on the Council's website as Appendix 4 to the ECM Report. The full Sustainability Appraisal and Equalities Assessment (“the SA Report”) was published on the Council's website on 18 December 2017. However the Council received the final draft on 11 December, before the ECM.
A completed version of the Site Selection Report (“SSR”) was published on the Council's website on 12 December 2017, together with appendices including Appendix A (Residential and Employment Site Selection Methodology). Appendix B (Assessment of Residential Sites) was not available. The text of the SSR states that this appendix was being finalised and would be published when completed, and that it would explain why each and every site has been included or omitted.
The SSR includes the following:
“2.136 The site allocations proposed for inclusion in the Submission Local Plan are broadly consistent with those contained in the Draft Local Plan. Amendments to the Draft Local Plan site allocations were made in the following settlements for the reasons set out below. If a settlement is not listed below the site allocations remain as proposed in the Draft Local Plan.
…
— Theydon Bois: site allocations amended and overall quantum of development reduced to address concerns regarding potential impacts on Epping Forest arising from increased recreational pressure.
2.137 In total, these 91 sites will support delivery of approximately 9,816 homes across the District. This is in excess of the 8,046 homes needed to meet the housing requirement in the District and ensures sufficient flexibility to respond to changes in the status of the proposed site allocations and the requirements of the market.”
On 14 December 2017 the Council met and took the decisions the subject of these proceedings.
On 18 December 2017 the six-week period of publicity for making representations on the local plan commenced. The period of publicity ended on 29 January 2018.
On 30 January 2018 the Ministry of Housing, Communities and Local Government wrote to chief planning officers of local authorities advising that the transitional arrangements in the September 2017 consultation paper would apply to any plans submitted before the final version of the revised NPPF is published (currently believed to be in the summer of 2018).
On 8 March 2018 these proceedings were commenced.
On 14 March 2018 the Council published the SSR together with all the appendices to it. The reason for the rejection of the Site is stated in Appendix B:
“Although the site was proposed for allocation in the Draft Local Plan (2016) and remains available within the first five years of the Plan period it is not proposed for allocation. Responses received through Regulation 18 Draft Local Plan consultation indicated that the site is less preferred by the community as a result of the scale of growth proposed. Additionally the Conservators of Epping Forest raised concerns around the overall scale of growth proposed in Theydon Bois, which is located in close proximity to the Epping Forest SAC, and the potential effects arising from recreational pressure and air quality. The Conservators identified the need for a SANG [Suitable Alternative Natural Greenspace] to compensate for the scale of growth, which may adversely affect the deliverability of the site. It was considered that other sites in Theydon Bois were more preferable in terms of their overall suitability and if allocated they would provide the desired growth in the settlement. This site is not proposed for allocation.”
During the last week of March the Council sent to some interested parties, but not to the Claimant, an undated letter offering a period until 23 April 2018 for supplementary representations (“the undated letter”). By e-mail dated 19 April 2018 the Council wrote to some interested parties extending that date for representations to 17 May 2018.
The updated position is that the NPPF will not be published until the end of July 2018; that being so the new housing requirements will not take effect before the end of January, early February 2019.
The Statutory Framework
The 2004 Act provides, so far as relevant:
“ 19 Preparation of local development documents
(2) In preparing a development plan document or any other local...
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