R (on the application of Helen Stride) v Wiltshire Council
| Jurisdiction | England & Wales |
| Judge | Jarman |
| Judgment Date | 17 June 2022 |
| Neutral Citation | [2022] EWHC 1476 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3569/2022 |
[2022] EWHC 1476 (Admin)
HIS HONOUR JUDGE Jarman QC
Sitting as a judge of the High Court
Case No: CO/3569/2022
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Cardiff Civil and Family Justice Centre
2 Park Street, Cardiff, CF10 1ET
Mr Marc Willers QC and Ms Ella Gunn (instructed by Watkins Solicitors) for the claimant
Mr James Goudie QC and Mr John Bethell (instructed by Legal Services Wiltshire Council) for the defendant
Hearing dates: 26 May 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HHJ Jarman QC:
Introduction
On the 21 July 2021, in a meeting of the executive of the defendant local authority, the executive resolved to commence master planning of a scheme called Future Chippenham. I shall refer to these as the meeting, executive, authority and scheme respectively. The scheme involves the building of thousands of new homes, and other mixed development, much of it upon land owned by the authority, but also upon land in private ownership. Crucially in this claim, the scheme also involved a major new distributor road serving the development, which was also aimed at connecting the major road network to the south of the town with that to the north. It was indicated in the scheme that such a connection would increase connectivity of the road network around the town and serve to ease traffic congestion in the town centre.
Three alternative routes of the proposed new road, called the inner, middle and outer routes, were the subject of public consultation. Respondents had to choose one preferred option, but were given the opportunity to comment. 75% of them rejected any route.
At the meeting, the executive also resolved to approve the new road along substantially the outer route from the south to the east, but which did not then continue to connect with the major network to the north.
The reason for the change was not made public at the time, but in these proceedings it has become clear that after the close of the consultation on the three routes, it became apparent that agreement with a landowner to deliver a road bridge needed for the northern section of the new road was unlikely to be reached within an appropriate time frame. Accordingly the executive resolved to progress the southern part of the scheme only.
The claimant, who is a local resident, challenges those decisions, with permission granted by Lang J, on three grounds:
i) The public were unlawfully excluded from part of the meeting at which the decisions were made and information was unlawfully not made public contrary to paragraph 9 of schedule 12A of the Local Government Act 1972 (the 1972 Act).
ii) The public were not consulted on the proposed development on land owned by the authority and thus in public ownership.
iii) The public were not consulted on the route of the new road as agreed at the meeting.
In considering those grounds, the distinction between the authority as landowner on the one hand and as local planning authority on the other must be kept firmly in mind. Where an authority as landowner applies for planning permission, there must be safeguards in place to ensure that the decision making process as landowner is kept separate from the decision making process as local planning authority. It is not in dispute that in the present claim those safeguards have been substantially complied with.
Nor is it in dispute that the meeting took place at a preliminary stage of delivering the scheme. A funder of the scheme, Homes England, has been informed of the changes to the scheme but has not yet responded, and there will need to be further discussions about these. There will be detailed planning appraisal which will be subject to public consultation before the submission of a revised submission to an ongoing review of the Chippenham Local Plan (the local plan). Responses will be presented to the independent Government appointed planning inspector at an examination in public, where the public may put forward objections. If the inspector finds that the scheme is the best strategic solution to meet Chippenham's housing needs, there will still be opportunities for the public to comment on individual planning applications as and when they are made.
The authority contends that it was entitled to exclude the public from that part of the meeting in which information relating to ownership of the land in question and to its negotiations with other landowners was discussed. It also contends that it could withhold such information as that was sensitive information which amounted to exempt information within the meaning of the 1972 Act so as to be exempt from the general rule which allows public access to information in authority meetings. The claimant says it was not exempt because it was information which relates to proposed development which the authority as planning authority may grant to itself within the meaning of paragraph 9. This involves a novel point of interpreting that phrase as it appears in that paragraph 9.
Grounds 2 and 3 each involve an issue whether the public had a legitimate expectation to be consulted on development on public land as part of the scheme and on the changed route of the new road. The claimant says that there was a clear promise by the authority within the scheme documentation that such consultation would be carried out. The authority says that at such a preliminary stage in the delivery of a scheme as major as this one, such delivery was a flexible and evolving process in which there will be further public consultation as outlined above. Accordingly references to consultation on these two points fell short of the necessary clear and unambiguous promises devoid of qualification so as to give rise to the legitimate expectation relied upon by the claimant.
Factual background
Before those issues are dealt with in more detail, it is necessary to set out more of the background. The scheme seeks to address a long-term need for housing in the town. It is not in dispute that there is such a need, although the parties differed on the extent of the need. The scheme involves the construction of 7,500 new homes, whereas the claimant is of the view that the need is only for 2,500. That difference however is not material to the issues which I must determine.
In November 2019, the executive obtained central Government funding for a distributor road, and in December 2020 entered into a grant determination agreement (GDA) with Homes England, which is an executive non-departmental public body, sponsored by the Department for Levelling Up Housing and Communities. The GDA set the terms of funding and the delivery commitments for infrastructure and housing, with a funding draw down deadline in March 2024.
The authority produced documentation to explain the scheme and to promote community engagement, including the Future Chippenham Stakeholder and Community Engagement Strategy (the strategy) dated 13 October 2020. Paragraphs 1.1.1 to 1.1.3 states:
“The Future Chippenham team are undertaking pre-application engagement and consultation ahead of submitting a Full Planning Application for the road and an Outline Planning Application for development on the council's land. This Stakeholder and Community Engagement Strategy sets out the council's, as Landowner and Highway Authority, approach to, and potential timetable, for engaging and consulting (both informally and formally) with all those with a possible interest in Future Chippenham, as part of the development of the proposal. This includes the new distributor road and the Masterplan for the council owned proposed development. These communications / engagements / consultations will be separate from the statutory consultation required by Wiltshire Council as Local Planning Authority which are governed by requirements in the Town and Country Planning Act 1990. It is recognised that engagement and consultations on Wiltshire Council's Local Plan Review have to and will take place. To avoid potential confusion, it is emphasised in this Strategy that our proposals are separate from this and the Future Chippenham team are representing the council's interest as landowner / promoter.”
The strategy dealt with consultation in paragraph 3 and at 3.1.2 stated:
“A flexible approach to pre-application consultation will be important so that issues identified throughout the process can be considered and any changes can be made prior to the planning application being finalised.”
Paragraph 3.2.5, which is relied upon heavily by the claimant in relation to grounds 2 and 3, states:
“To deliver these objectives we will be undertaking the following consultation process: • Formal public consultation on the road route options involving those stakeholders identified as part of the stakeholder identification mapping and management process. This will be accompanied by the broad Framework of proposed development on council owned land • Announcement of the preferred road route • Formal public consultation on the detailed road alignment and Future Chippenham Masterplan for council owned land involving those stakeholders identified as part of the stakeholder identification mapping and management process.”
The authority issued a consultation leaflet and response proforma on the three road options, each of which crossed five zones to the south and east of the town. The consultation took place between 15 January and 12 March 2021. During a similar period, the authority as local planning authority undertook a review of the local plan, which also included public consultation during those months.
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