R Swan Quay LLP v Swale Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 27 January 2017 |
| Neutral Citation | [2017] EWHC 420 (Admin) |
| Docket Number | CO/3447/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 January 2017 |
[2017] EWHC 420 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Dove
CO/3447/2016
Ms Mary Cook and Mr Robert Williams (instructed by Shakespeare Martineau LLP) appeared on behalf of the Claimant
Ms Megan Thomas (instructed by Sharpe Pritchard LLP) appeared on behalf of the Defendant
Hearing date: 12 January 2017
Introduction
This is a claim for judicial review of the defendant's decision to hold a referendum in respect of the Faversham Creek Neighbourhood Plan ("FCNP") on 21 June 2016. Holgate J granted permission solely on one ground. As this ground was clarified at the hearing, it amounts to the alleged failure of the examiner to provide adequate reasons for his recommendation (adopted by the defendant) that the FCNP should be modified in relation to its proposals for Swan Quay, and thus it is contended that the court could not be satisfied that neither the examiner nor the defendant had acted within the powers given to them to modify a neighbourhood plan which has been submitted.
The facts
In the early Middle Ages, Faversham was part of the Cinque Ports Confederation as a limb of Dover. Its significance as a port was built upon the development of Faversham Creek. Faversham Creek is described as a tidal inlet of the Swale waterway, penetrating some 6 kilometres inland on a winding course across the marshes of the North Kent coast. Its fortunes steadily declined as a port, in particular in the 20th century, and by 2000 commercial boat traffic had completely ceased.
The creek area forms part of the conservation area and is identified within a draft Character Assessment for the Conservation Area as "Creekside". In particular, that part of the Conservation Area containing the Swan Quay site, which is owned by the claimant and the subject of these proceedings, is described in the following terms:
"4.33. A large joinery works occupies the southern end of Belvedere Road, where a rather pleasing array of traditional-looking industrial buildings fronts onto the creek (although most of the structures are relatively modern). Exceptionally, Faversham Chandlery is a brightly-painted weatherboarded building dating from the early C19. Despite having no direct connection with the water this site has established a rather convincing aesthetic relationship with the creek, the buildings being expressed for the most part in a local vernacular of treated weatherboarding and slated roofs. Alongside to the north is the impressive C19, five storeys high, yellow brick-built Belvedere Mill now being converted to flats and a restaurant. With its characteristic projecting hoist bays the structure is a crucial and prominent part of the historical record of the creek's industrial past. On the opposite side of Belvedere Road are other vacant buildings and land, whilst to the north are brewery premises where barrels and pallets are stored both in the open and under cover."
The Swale Borough Local Plan 2008 established a specific planning policy context for the development of Faversham Creekside within its policy AAP2, which provided, together with its explanation, as follows:
"5.12. Faversham creek winds inland crossing the marshes into the heart of the town. Once a thriving place of industry and water-trade, recent years have seen a change in the character of the creekside with new waterside housing. Despite this, as a central component to the historic development of Faversham, the creek remains an important ingredient in its unique character as well as a place of employment, leisure, and tourism opportunity. It is an irreplaceable historic asset of great significance.
[…]
5.14. House builders and homeowners have found the creekside's industrial sites an attractive prospect, but these change the character of the area and place pressures — both financial and environmental — on the remaining businesses and vacant sites to follow suit. Such changes to the character of the creekside lead to the loss of diversity of activity and a severance in the old links between the water and waterside uses. The Council considers that levels of new housing have reached the point where further proposals will damage the area and it will now resist them as both contrary to the strategy for the Local Plan and the policy for this AAP. Additionally, the Council considers that frontage development not involving active use or management of the creek itself, or that which prevents use of the creek by vessels, should not be permitted.
[…]
5.16. For existing and former employment sites, a rigorous application of Policy B1 will mean retaining the availability of employment land and buildings along the creekside. For existing employment uses, within the context of the strategy for the town and Policy AAP2, the Council will look to support proposals to expand and diversify businesses that will enable them to maintain a presence within the town. However, given the proximity of recent housing development, there are employment uses that would now be entirely inappropriate, as they would in any other residential area, and the suitability of their retention will need to be carefully considered. However, where sites may be considered unsuitable for their current or former use, it will normally be the case that an alternative, more suitable, commercial use will be sought by the Council, rather than the site being accepted for housing development. In exceptional cases, where mixed uses, or wholly non commercial developments, are considered appropriate under Policy B1 and Policy AAP2 for those sites with a frontage to the water, the provision of links to the water, whether by moorings, mooring points, rubbing strips, or through commercial activity, will be sought, alongside the restoration of the quayside frontage.
[…]
5.19. […] To address the regeneration of the creek basin as described, and the future of the various sites referred to above, Policy B17 promotes use of the wider area of the creek basin for the mooring, maintenance and use of historic craft for employment/tourism purposes. These would be focused around land and buildings at Ordnance Wharf, the Purifier building, and the BMM Weston car park (where open space and environmental enhancement should be additionally considered around a retained car park), but could extend onto other wharfage. Housing development would prejudice these proposals and will not be permitted.
• Conduit Street and Quay Lane: maintaining the strongly industrial character of the area and creekside on both sides of these roads.
• Belvedere Road: retaining remaining employment sites and seeking a greater diversity of uses and activity in what is largely now a residential area.
[…]
Policy AAP2
Faversham Creekside
An Area Action Plan is designated for Faversham Creekside, as shown on the Proposals Map. Within this area the Borough Council will seek to ensure that it continues to function as a place of special interest and activity with strong associations with the water, and will specifically encourage the regeneration of the creek basin for commercial and tourism purposes, including use of the basin and its wharfage for historic craft. Planning permission will not be granted for proposals that would result in the loss of land or buildings suitable for employment uses or, on appropriate sites, would not involve active use or management of the creek itself. All development proposals will:
1. maintain or enhance a mix of uses and activity that respect the maritime, industrial and residential character, as appropriate to the varied parts of the AAP area;
2. maintain or enhance an environment appropriate to enable traditional waterside activities to flourish, including, where appropriate, financially contributing toward improving and maintaining the navigability of the creek channel and its infrastructure, including providing wharfage and moorings;
3. preserve or enhance the area's special archaeological, architectural and historic character, including its open spaces; and
4. avoid any significant adverse environmental impacts and where possible enhance the biodiversity interest of neighbouring internationally designated sites for nature conservation. The Borough Council will expect development to:
a. preserve or enhance landmark and other important buildings, waterside structures and details;
b. preserve and create access to the waterside, including wharfage and moorings, and where appropriate provide for a creekside walk;
c. by use of its grain, scale, form and theme of materials, be creekside in character;
d. retain existing greenspace and, where appropriate provide new areas; and
e. retain or enhance existing townscapes, including those in the views of higher ground."
On 15 January 2013, Faversham Town Council ("FTC") applied to have Faversham Creek designated as a neighbourhood area. The neighbourhood area, and thus the area ultimately covered by the FCNP, is, for present purposes, essentially the same as the area covered by AAP2. The neighbourhood area's designation was confirmed by the defendant on 20 February 2014. FTC published a pre-submission draft of the FCNP for consultation and thereafter consultation occurred in May and June 2014. The pre-submission draft included specific proposals for a number of identified sites within the neighbourhood area. In particular, Site 5 was identified as Swan Quay.
In the consultation responses, concern was expressed by a number of respondents in relation to...
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