R Houghton and Wyton Parish Council v Huntingdonshire Distirct Council
| Jurisdiction | England & Wales |
| Judge | Charles George |
| Judgment Date | 02 May 2013 |
| Neutral Citation | [2013] EWHC 1476 (Admin) |
| Date | 02 May 2013 |
| Docket Number | CO/12732/2011 |
| Court | Queen's Bench Division (Administrative Court) |
[2013] EWHC 1476 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Charles George QC
(Sitting as a Deputy High Court Judge)
CO/12732/2011
Miss S Hannett (instructed by Trowers & Hamlin) appeared on behalf of the Claimant
Mr P Goatley (instructed by Coling Meadowcroft) appeared on behalf of the Defendant
THE DEPUTY JUDGE: The Claimant, Houghton and Wyton Parish Council ("the Parish Council"), by claim form dated 29 December 2011, applies for judicial review of the decision on 20 October 2011 of the Defendant, Huntingdonshire District Council ("the District Council") to finalise and approve the St Ives West Urban Design Framework ("the Framework") "as planning guidance to inform Council policy and future decisions on potential development applications". Permission was given by Thirlwall J, following an oral hearing on 1 April 2012.
There are two Grounds. The first ground is that the Defendant has acted ultra vires by seeking to allocate land for a particular use or development otherwise than by the adoption of a development plan document ("DPD") ("the DPD ground"). The second, alternative, ground is that the Defendant has acted ultra vires in seeking to produce planning guidance otherwise than by way of a Local Development Document ("LDD") ("the LDD ground").
FACTUAL BACKGROUND
On 23 September 2009 the Defendant adopted a core strategy for the Huntingdon District ("the Core Strategy"). The Introduction to this states that the "Council has chosen not to include detailed development control policies or identify specific development sites", as these would be dealt with separately by, inter alia, a Planning Proposals DPD. Chapter 5 of the Core Strategy sets out the "spatial strategy". Paragraph 5.2 refers to a Key Diagram which "illustrates the locations and directions of growth for the new homes". On the Key Diagram an arrow points to the west of St Ives, indicating residential development. It is positioned slightly south of the A1123.The Key Diagram also indicates that there will be some residential development within the built up area of St Ives.
Policy CS2 of the Core Strategy states that "at least 500 homes will be provided" in the St Ives Spatial Planning Area (of which area no boundaries are indicated in the Key Diagram or elsewhere in the Core Strategy). It is said that, of these, at least 100 homes will be on previously developed land, about 400 homes will be on greenfield land and about 200 will be affordable. Policy CS2 also states:
"Provision will be in the following general locations:
In a significant Greenfield development to the west of the town…"
Table 6.2 (Performance Indicators and targets) states in relation to Policy CS2 that implementation would be:
"Through Planning Proposals DPD, Huntingdon West AAP, development control decisions, SPDs and UDFs".
UDFs are non-statutory Urban Design Frameworks (a term unhelpfully undefined elsewhere in the Core Strategy).
The Defendant's intention at the time of the adoption of the Core Strategy was to "follow swiftly [the] Core Strategy with the Planning Proposals DPD in order to identify and allocate development sites to enable timely delivery", see its Response to Inspector's Questions (February 2009). Had the Defendant done what it said it would do, the present proceedings would have been avoided. However, no Planning Proposals DPD has been adopted, so that there is no DPD that allocates land for housing within the Defendant's area.
Instead, the Defendant prepared and published in draft in July 2011 a document described on its cover page as "Urban Development Framework, planning brief 2011, supplementary planning document". This draft identified within a red line a site to the west of St Ives, together with a "preferred option" for its development, including four areas notated as new potential housing areas.
The Claimant, in a letter dated 22 September 2011, responded to the consultation, setting out its objections to the adoption of the draft. The first ground of objection was that it would be ultra vires to adopt the draft Supplementary Planning Document ("SPD"), because it constituted a site allocation policy. The reasoning was the same as that which forms the basis of Ground 1 of the present challenge. The Claimant also raised a number of planning objections to the adoption of the draft (with which this court is not concerned).
The officer's report to Cabinet, whilst mentioning the Claimant's assertion that adoption would be ultra vires, did not specifically address the issue raised. The Report stated that the document was being promoted as an UDF, not an SPD, and that any reference to SPD would be removed from the final document. The Officer's Report contained no explanation why the change was made from SPD/UDF to solely UDF, and I was proffered no explanation by Mr Goatley, Counsel for the Defendant. It may be that the only reference in the draft to SPD (on the cover page) had itself been an error, but this leaves unanswered why the chosen format for the document that proceeded to adoption was that of a UDF rather than an SPD. The Report included that:
"…Once approved, the [Framework] will provide the District Council's development guidance for the area. It is not necessary to delay the production of such guidance until the Planning Proposals DPD is completed. The [Framework] informs the development of the Local Development Framework policy deriving from the adopted Core Strategy, and this includes the emerging Planning Proposals DPD which deals with specific land allocations".
The Framework, no longer entitled SPD nor planning guidance was adopted by Cabinet on 20 October 2011 and came into force on 28 October 2011. The court has not been informed of any further steps taken with regard to a Planning Proposals DPD.
The Minutes of the adoption meeting state that:
"Members were specifically reminded that the planning guidance contained within the document was not intended to define, presume or endorse the release of sites within the area, nor constitute any formal site allocation".
THE LEGISLATIVE BACKGROUND
In one of the few previous cases which have considered statutory language in relation to allocations ( Bolton Cpn v Owen [1962] 1 QB 470), Lord Evershed MR referred at 479 to "the intricate legislation relating to town and country planning" and Wilmer LJ at 485 to "the bewildering maze of statutory provisions". Fifty years on, the statutory provisions are different, but those interpreting them can still be excused a measure of bewilderment. For skilled guidance through the maze I am indebted to Counsel, and in particular to the Claimant's Counsel, Miss Hannett.
The corner-stone of modern town and country planning is the requirement in section 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") that determination of an application for planning permission must be made in accordance with the development plan unless material considerations indicate otherwise. That makes it essential to know in each case what the development plan is, though planning documents which do not form part of the development plan can still be relevant as material considerations.
The development plan is defined in section 38(3)(b) of the 2004 Act as "the development plan documents (taken as a whole) that have been adopted or approved in that area".
Section 15(1) of the 2004 Act provides that the local planning authority (" LPA") must prepare and maintain a scheme to be known as their local development plan. Pursuant to section 15(2), the local development scheme must specify the LDDs which are to be DPDs. Section 37(3) defines a DPD as "a local development document which is specified as a development plan document in the local development scheme"; and pursuant to section 17(3):
"[The LPA's LDDs] must (taken as a whole) set out the authority's policies (however expressed) relating to the development and use of land in their area".
Section 17(7)(za) provides that regulations made under section 17 may prescribe "which descriptions of documents are, or if prepared are, to be prepared as local development documents". Section 17(7)(a) provides that regulations made under section 17 may prescribe "which descriptions of local development documents are development plan documents".
At the material time the relevant regulations were The Town and Country Planning (Local Development (England) Regulations 2004 ("the 2004 Regulations"). Regulation 6 sets out the documents which, if prepared, are to be prepared as LDDs. That includes, pursuant to regulation 6(2)(b), "any … document which includes a site allocation policy". Regulation 7 sets out the documents which must be DPDs.. This includes "core strategies" (as defined in regulation 6(1)(a)) and "any other document which includes a site allocation policy". A "site allocation policy" is defined in regulation 2(1) as meaning "a policy which allocates a site for particular use or development".
A "supplementary planning document" is defined in regulation 2(1) as meaning "an LDD which is not a DPD, but does not include the local planning authority's statement of community involvement". The National Planning Policy Framework (March 2012, and thus postdating adoption of the Framework), describes SPDs as:
"Documents which add further detail to the policies in the Local Plan. They can be used to provide further guidance for...
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...argument on this ground of the claim. 69 Different facts will lead to different results. For example, in R. (Houghton and Wyton Parish Council) v Huntingdonshire District Council [2013] EWHC 1476 (Admin), Mr Charles George Q.C., sitting as a deputy judge of the High Court, held that the do......