R (Persimmon Homes & BDW Trading Ltd) v Vale of Glamorgan Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Beatson |
| Judgment Date | 15 March 2010 |
| Neutral Citation | [2010] EWHC 535 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6439/2009 |
| Date | 15 March 2010 |
[2010] EWHC 535 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
33 Bull Street, Birmingham B4 6DS
Before: The Honourable Mr Justice Beatson
Case No: CO/6439/2009
MR S. DAVIES QC AND MR R. FENTEM (instructed by M & A Solicitors LLP) for the Claimants
MISS M. ELLIS QC AND MR R. GREEN (instructed by Vale of Glamorgan Council) for the Defendant
Hearing dates: 2 & 3 March 2010 at the Cardiff Civil Justice Centre
Mr Justice Beatson:
Introduction:
By section 62 of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”), local planning authorities in Wales must prepare a Local Development Plan setting out their objectives in relation to the development and use of their land. The 2004 Act and the Town and Country Planning (Local Development Plan) (Wales) Regulations 2005 SI 2005 No. 2839 made under it (“the 2005 Regulations”) require a local planning authority to carry out an appraisal of the sustainability of the plan and to formulate its preferred strategy, and to consult on them before “depositing” them and documentation concerning site allocation and submitting the plan to the Welsh Assembly Government for independent examination. This application challenges a decision made by the defendant, the Vale of Glamorgan Council, endorsing a “Draft Preferred Strategy” and an “Initial Sustainability Appraisal”, two important steps in the process leading to the adoption of its Local Development Plan.
The 25 March 2009 decision:
The defendant first endorsed the “Draft Preferred Strategy” and “Initial Sustainability Appraisal” on 25 March 2009. The Draft Preferred Strategy is to concentrate development opportunities in Barry and the south east of the Vale of Glamorgan, option 5 of nine options (see [37] below) considered and appraised by the defendant and its then consultants Hyder Consulting (UK) Ltd (“Hyder”). The claimants, Persimmon Homes Ltd (“Persimmon”) and BDW Trading Ltd (“Barratts”), have substantial land options at a site of some 192 hectares known as Llandow Newydd in the western half of the Vale of Glamorgan. The site is situated on and around a disused World War Two airfield between Cowbridge and Llantwit Major. The claimants wish to develop a new settlement with some 2750 housing units on it.
The effect of the defendant's decision is to exclude Llandow Newydd from consideration in the process of allocating sites for development and therefore from the Local Development Plan unless in due course it can persuade the person undertaking the independent examination of the plan to so recommend. Once the Local Development Plan has been made, a developer will generally need to ensure that a proposed development fits within the strategies and options contained in the Local Development Plan in order to have a realistic prospect of obtaining planning consent for that proposed development.
These proceedings were instituted on 23 June 2009. His Honour Judge Curran QC ordered that permission be considered at an oral hearing. Silber J granted permission on 6 October. The decision is challenged on the following grounds. The first (the “insufficient or misleading information” ground) is that the defendant was misled by the officers' report presented to the Cabinet meeting at which the decision was made. It is claimed that the report was misleading in omitting to make reference to or make available the only independent appraisal of the option (option 8a) involving a new settlement at Llandow Newydd conducted on behalf of the defendant by Hyder. Hyder had given that option a higher score than the option (option 5) favoured by the defendant's officers. It is also claimed the report is misleading in not explaining alterations to Hyder's sustainability appraisals, the limited ambit of the involvement of Levett-Therivel, the consultancy which replaced Hyder, and in wrongly summarising, misquoting or selectively citing various reports and policy guidance documents.
The second ground on which the decision is challenged (the “predetermination” ground) is that the officers preparing the report, in particular Mrs Harvey, the defendant's Head of Forward Planning, were illegitimately predisposed towards option 5 and biased against alternative options including option 8a. The third ground (the “bias and conflict of interest” ground) is that Mrs Harvey is married to an employee of Persimmon who worked on the Llandow Newydd project until December 2007 and this should have caused her to recuse herself from involvement in the process. The fourth ground of challenge (the “inadequacy of statutory consultation” ground) is that option 8a emerged after the initial consultation but there was no further consultation as to its inclusion in the defendant's Draft Preferred Strategy.
The 3 February 2010 decision:
The defendant considered its position in the light of the grant of permission. On 10 December it decided to reconsider what its preferred strategy should be. It did so on 3 February 2010. Its Cabinet had before it a report prepared by Mr Quick, its Director of Environmental and Economic Regeneration. That report stated that the Cabinet was being asked to decide the question afresh and was not bound in any way by the earlier decision or by the views of officers. The report referred to or annexed information (in particular three draft appraisals of option 8a by Hyder) which was said to have been improperly omitted from the earlier report. Mrs Harvey took no part in this process. The Cabinet resolved to endorse the Draft Preferred Strategy.
The defendant's perfected grounds submitted that, as a result of this decision, it would be an abuse of process for the claimants to continue these proceedings. The written submissions of both parties dealt with this as a preliminary issue. I did not deal with it in this way. I did not consider the defendant's submissions put the matter beyond doubt. Moreover, the preliminary issue required consideration of many of the issues concerning the decision of 25 March 2009 to be considered through the prism of the later decision and I considered that to do so would have resulted in a more complex hearing.
The evidence:
The evidence before me on behalf of the claimants consists of statements dated 2 June and 30 September 2009 by Mr Webber, Hyder's Director of Planning and Transport, a statement dated 30 September 2009 by Mr Muir, Managing Director of Harmers, which conducted an appraisal of option 8a for the claimants, one dated 4 November 2009 by Mr Lawley, Managing Director of Cooke and Arkwright, a firm of chartered surveyors which provided advice on the non-residential components of the proposal, and one dated 1 March 2010 by Mr Hawke, a senior Land Manager for Barratt Homes South Wales Division, and the second claimant's principal representative on the project.
On behalf of the defendant there are statements from: Mr James, the Cabinet Member for Planning and Transportation and Chairman of the Planning Committee and formerly leader of the Council dated 10 July 2009; Mr Thomas, Head of Planning and Transportation, dated14 July and 6 November 2009; Mr Quick, dated 9 July 2009 and 17 February 2010; and Mrs Harvey, Operational Manager, Planning and Transportation Policy, dated 14 July and 6 November 2009.
I have been assisted by clear and cogent written and oral submissions by Mr Stephen Davies QC, on behalf of the claimants, and Miss Morag Ellis QC, on behalf of the defendant.
The legislative framework
There are two relevant legislative schemes. The first is that contained in Part 6 of the 2004 Act and in the 2005 Regulations. The Act introduced a new system of development planning for Wales including the requirement in section 62(1) that a local planning authority must prepare a “Local Development Plan” for its area. Under the previous legislative regime an authority was required to prepare a Unitary Development Plan. The second legislative scheme is that contained in the Environmental Assessment of Plans and Programmes (Wales) Regulations 2004 SI 2004 No. 1651 (“the 2004 Regulations”). The 2004 Regulations implement Directive 2001/42/EC. They require local planning authorities to prepare environmental impact reports. Such reports must identify and evaluate the likely significant effects on the environment of implementing a plan, including a Local Development Plan. Regulation 8 provides that a plan, including a Local Development Plan, may not be adopted before account has been taken of the environmental report for the plan and “every opinion” expressed in response to consultation: regulation 8(3). The Welsh Assembly Government's Local Development Plan Manual, dated June 2006, recommends that the procedures under the two legislative schemes be combined.
As to the preparation of a Local Development Plan, section 62(5) of the 2004 Act sets out seven matters to which the local planning authority must have regard in relation to its objectives and its general policies for the implementation of those objectives in relation to the development and use of land in its area. These include: (a) current national policies, (b) the Wales spatial plan, and (d) the authority's community strategy.
By section 62(6) the local planning authority must: (a) carry out an appraisal of the sustainability of the plan, and (b) prepare a report of the findings of the appraisal. The Town and Country Planning (Local Development Plan) (Wales) Regulations 2005 SI 2005 No. 2839 set...
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