R v South Northamptonshire District Council and Others
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE BROOKE |
| Judgment Date | 06 August 1993 |
| Judgment citation (vLex) | [1993] EWHC J0806-1 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 August 1993 |
| Docket Number | No: C0/908/93 |
[1993] EWHC J0806-1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: Mr. Justice Brooke
No: C0/908/93
CO/1572/93
MR. D.M. BARNES QC and MR. J. KARAS (instructed by Davies Arnold Cooper, 6—8 Bouverie Street, London EC4) appeared on behalf of the Applicant.
MR. G. STOKER (instructed by The Legal Department, South Northamptonshire District Council, Springfields, Towcester, Northamptonshire) appeared on behalf of the 1st Respondent
MR. G. STOKER (instructed by Chandler Ray, Buckingham) appeared on behalf of the 2nd Respondent
MR. J. HARPER QC (instructed by Fennemores, 5 Spencer Parade, Northampton) appeared on behalf of the 3rd and 4th Respondents.
There are before the court two applications for judicial review by Crest Homes plc of certain decisions made by the South Northamptonshire District Council ("the council") arising out of actions taken by the council in relation to a new draft local plan. In different ways the applicants seek to impugn the legal validity of a decision made on 6th July 1992 recommending the approval of the draft local plan for consultation and adapting it for development control purposes; the consultation regarding this draft plan which took place in August and September 1992; six agreements made by the council with local landowners which contained "planning gain" elements; and two grants of outline planning permission, made on 14th January and 11th February 1993 respectively, to two of those landowners in relation to developments which form the subject matter of two of these agreements.
The council's area is conveniently divided into three parts, the small towns of Brackley (9000 inhabitants) and Towcester (6000 inhabitants) and what are described as Rural Areas. The history which immediately led up to the present dispute started in 1988. The council realised that before Towcester could be expected to accommodate any significant further residential growth, money needed to be spent in upgrading the infrastructure and the facilities it offered to its inhabitants. The council recognised that Towcester was deficient in many respects, and that its inadequacies could not be remedied by public finance, given the current restraints on central government and local authority expenditure.
Reports placed before the Planning Committee in December 1988 and January 1989 in the context of the preparation of a new Towcester Local Plan showed that the new County Structure Plan, together with other factors, had caused a surge of interest in the town recently from landowners and developers. Different options for a new by-pass road were discussed in these reports, as was the lack of adequate car parking facilities, and the need for a leisure centre, a new primary school, and other new community facilities. In January 1989 a special meeting of the committee agreed that the town had perhaps reached what was called "its environmental threshold beyond which substantial investment in infrastructure, services and facilities would be needed".
During 1989 the council's chief executive took steps to interest developers and other interested parties in arrangements by which they might contribute towards the needs which had been identified. It was recognised that an impending First Alteration to the County Structure Plan would mean that Towcester would be expected to accommodate a good deal of the growth in residential development which was being allocated to the district. A series of meetings were held at which different ideas were canvassed, and a further report by the Chief Planning Officer in October 1989 canvassed the different options open to the council in the context of a county structure plan proposal for 5300 new dwellings in South Northamptonshire before the year 2006, of which 1500 would be in Towcester, 2000 in Brackley and 1800 in the Rural Areas. In April 1990 the applicants confirmed their agreement in principle to the council's ideas about contributions from developers to the facilities which would be needed in Towcester, and the agents for the relevant landowners referred expressly to the need for the extent of such contributions to be matched against the realisation of development value.
During the first part of 1990 six different options for the development of Towcester and its immediate area were discussed in the context of this need to provide for 1500 new dwellings in the area and the concurrent need to ensure that the necessary improvements were provided for the infrastructure and other services required to support such an expansion of the town. A report by the Chief Planning Officer in April 1990 showed that it had been made clear to local landowners who were interested in developing their land that no further land would be released for development until a comprehensive programme of provision for essential community needs had been compiled and a legally binding agreement for their funding and programming had been entered into. At that time it was hoped that a consortium might emerge, with whom a single agreement could be made, and the ideas which were then being canvassed for the funding of a development programme are set out in this report.
In April 1990 the committee selected what was called Option 6 as the basis for a new Towcester Local Plan. This identified six sites for residential development in a scheme which would incorporate a new A5 by-pass to the west of the town. Three of these sites feature in the application which came before me. These were a 28 hectare site owned by the Hesketh Estate off Northampton Road to the north of the town, suitable for 450 500 new dwellings ("the Hesketh residential land"), a smaller, 10 hectare site owned by the Lee family, at Belle Baulk Farm to the north east of the town, suitable for 85 new dwellings ("Belle Baulk Farm") as the second phase of a development for which permission had already been granted for the first phase there, and a 16 hectare site at Red House Farm in relation to which the applicants had an option to develop. This site, which was suitable for 275 350 new dwellings, lay to the south east of the town, and with two of the other sites which were then earmarked for development at a place called Wood Burcote, formed a more or less continuous strip of land to the north of the proposed corridor for the new Western By-Pass.
Outline planning consents have now been given by the council for the residential development of the Hesketh residential land and Belle Baulk Farm, and the applicants seek orders quashing these two consents, in addition to the other relief they seek against the council. In the proceedings before me Mr Stoker was instructed by the council and by David Wilson Homes Limited, who held an option to develop Belle Baulk Farm, and Mr Harper appeared for the Hesketh Estate as the owners, and also for Persimmon Homes (Midlands) Limited who held an option to develop the Hesketh residential and industrial land.
In June 1990 the council organised a public exhibition of their plans for Option 6. These had already included the proposed industrial development of 14 hectares of land owned by the Hesketh Estate at Old Tiffield Road ("the Hesketh industrial land"), and they now also embraced plans for a town centre supermarket and public car park on 4 hectares of land also owned by the Hesketh Estate on a meadow near the centre of the town between the River Tove and the Mill Stream ("the Hesketh supermarket land"). In due course, as I will describe, the council entered into planning agreements with the owners of Belle Baulk Farm and with members of the Hesketh family as owners of the Hesketh residential, industrial and supermarket land, and the validity of all four of these planning agreements is in issue in these proceedings.
In July 1990 the council's chief executive and chief planning officer reported on the favourable response to public consultation, and they then received authority to instruct professional advisers and to continue discussions with members of the proposed consortium, which included the applicants, about how the plans for mixed public and private participation in the development of Towcester might be taken forward.
There followed a series of meetings, from July 1990 to March 1991, between officers of the council and what came to be known as the Towcester Development Group. This group included the applicants. At these meetings a list of the improvements in Towcester which were needed to support any substantial development in the town were identified and agreed, as was the principle that a reasonable contribution from development profits would go towards paying for them. Because of the size of the consortium (5 different landowners), the different size of the various proposals, the broad scope of these initial discussions about the phasing of development and the focusing of the necessary community facilities within a limited number of ownerships, a percentage contribution was agreed to be the appropriate way forward. Attempts by a firm of leading accountants to establish some different formula which would satisfy all the separate owners had ended in failure, and the contributions towards essential infrastructure and services were eventually agreed at 20% of enhanced land value for residential proposals, and 171/2% for industrial/commercial proposals. The town centre supermarket proposal was considered to be unique, and the negotiations with its developers were conducted without specific...
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