Shadwell Estates Ltd (Claimant) Breckland District Council (Defendant) Pigeon (Thetford) Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Beatson |
| Judgment Date | 11 January 2013 |
| Neutral Citation | [2013] EWHC 12 (Admin) |
| Docket Number | Case No: CO/8634/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 January 2013 |
[2013] EWHC 12 (Admin)
The Honourable Mr Justice Beatson
Case No: CO/8634/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS
Timothy Straker QC and Timothy Leader (instructed by Greenwoods Solicitors) for the Claimant
John Hobson QC and Ned Helme (instructed by Breckland District Council Legal Department) for the Defendant
James Maurici (instructed by Berwin Leighton Paisner LLP) for the Interested Party
Hearing dates: 26 and 27 November 2012
I. Introduction
The claimant, Shadwell Estate Company Ltd ("Shadwell"), owns a large agricultural and equine estate to the south- east of Thetford. In these proceedings, brought under section 113 of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act"), it challenges the decision of the defendant, Breckland District Council ("the Council") to adopt the Thetford Area Action Plan ("the TAAP") on 5 July 2012.
The TAAP confirmed the designation in the Council's Core Strategy of an area to the north- east of Thetford as a strategic urban extension for the town on which 5,000 houses are to be built. The area so designated does not include the Shadwell estate but does include the Kilverstone Estate ("Kilverstone"). A planning application on land which includes Kilverstone is being promoted by Pigeon (Thetford) Ltd, a property company. Pigeon is an interested party in these proceedings. On its face, Shadwell's challenge does not concern the treatment of its own land. Its case is that there are public law deficiencies in the treatment of evidence relating to stone-curlews on the Kilverstone estate by the Council and by Mr Broyd, the Inspector at the examination in public of the TAAP on 6 and 7 March 2012.
Stone-curlews are a protected species under Council Directive 79/409/EEC ("the Birds Directive"), as updated by Council Directive 2009/147/EC. The Conservation of Habitats and Species Regulations 2010 SI 2010 No 490 ("the Habitats Regulations 2010"), now amended by the Habitats Regulation 2012 SI 2012 No 1927, have transposed the Birds Directive and Council Directive 92/43/EEC ("the Habitats Directive") into United Kingdom law. Stone-curlews and their habitats must be protected from the effects of development. One of the areas designated under Article 4.1 of the Birds Directive which is therefore a "European Site" because of the presence on it of stone-curlews, is the Breckland Special Protection Area ("the SPA"), an area to the south- east of Thetford. The Habitats Regulations 2010 provide, inter alia, for the assessment of the implications of plans or projects for European Sites. Part of Shadwell's estate is within the SPA and the remainder of the estate is no more than a few hundred metres from its boundary. The Kilverstone estate is situated to the north- east of Thetford and is not within any area designated as SPA due to stone-curlews. None of the allocation areas are within 1,500 metres of the boundary of the SPA designated due to stone-curlews, but some are within 2,500 metres of that boundary.
The TAAP is in what can be termed the third tier of development plan provided for by the 2004 Act. As such it is required that it be prepared in conformity with the first and second tiers, the Regional and Core Strategies, in order to provide local policy detail in relation to the strategic choices made in those development documents. The relevant Regional Strategy is the 2008 East of England Plan. The Council's Core Strategy was adopted on 17 December 2009.
The East of England Plan designated Thetford as a key area for development, envisaging an additional 6,000 dwellings in and on the edge of the town. In its Core Strategy the Council defined an area to the north- east of Thetford as a strategic urban extension for the town. The Council's strategy is to protect species in the Breckland SPA and in a 1,500 metre buffer-zone from the edge of those parts of the SPA that support, or are capable of supporting, stone-curlews, from development that will adversely affect the SPA. In the SPA and the buffer-zone additional tests for planning permission apply in order to seek to protect the SPA. Because of the presence of the stone-curlews in the area to the south- east of the town, including on Shadwell's land, that area was not within the area designated by the Core Strategy for the strategic urban extension. Shadwell did not challenge the Core Strategy.
The TAAP was preceded by two documents; in 2008, "Issues and Options" and, in March 2009, "Preferred Options", and extensive consultation. At the TAAP's examination in public, the Inspectors inter alia tested whether the Core Strategy provided a sufficiently robust foundation for the preparation of action plans. They concluded that it did and rejected criticisms of the evidential base for the approach in the Core Strategy.
Shadwell contends that the TAAP was legally defective on the ground that the underlying sustainability appraisal was flawed in that it did not include an assessment of the environmental characteristics at Kilverstone because information about stone-curlews on that estate was incomplete. During earlier stages of the planning process, Shadwell's position had been very different. It had not sought the removal of Kilverstone as a suitable location for housing development, but opposed having an urban extension entirely to the north- east of Thetford on the basis that it would be unbalanced, and opposed the 1,500 metre buffer zone as having no sound basis. Its case now is that the Council was told of the presence of stone-curlews on part of the Kilverstone estate but did not put that material before the Inspector who conducted the examination of the TAAP either in detail or (since the Council's position was that that information was provided in confidence in relation to another matter) in general terms. It maintains that, for this reason, the picture before the Inspector was not complete.
In these proceedings, Shadwell's case as to the flaws in the TAAP has been crystallised into three grounds. The first two relate to the underlying sustainability appraisal and the consequences for the TAAP. The third relates to the Habitats Regulations 2010. They are:
(1) The Council failed to carry out an adequate sustainability appraisal and strategic environmental assessment in compliance with section 19(5)(b) of the 2004 Act, and various provisions of the Environmental Assessment of Plans and Programmes Regulations 2004 SI 2004/1633 ("the EAPPR 2004").
(2) The Inspector who conducted the examination of the TAAP erred in finding that the TAAP satisfied the requirements of section 19 of the 2004 Act and that it was "sound". Accordingly, the requirements of section 20(5) of the 2004 Act were not met.
(3) The data in the Council's Habitats Regulations assessment did not take account of the finding that built development could adversely affect the nesting density of stone-curlews up to a distance of 2,500 metres, and was incomplete in excluding the Kilverstone estate after 2000 and only including data for other land around Thetford between 1988 and 2006. The result was that the assessment breached Regulation 61 of the Habitats Regulations 2010.
Shadwell also contended (see, for example, skeleton argument, paragraphs 5 and 61) that it was deprived of a proper opportunity to test the TAAP at the examination in public and to advance alternative proposals because its objections to the soundness of the TAAP were dismissed as based on anecdotal evidence.
The evidence on behalf of Shadwell consists of two statements of Christopher Kennard, its Finance Director, dated 28 August and 20 November 2012, and a statement of Darryl Broom dated 17 September 2012. Mr Broom was a gamekeeper at Kilverstone until 2008. The evidence on behalf of the Council consists of the statement, dated 3 October 2012, of David Spencer, the Council's Deputy Planning Manager. The evidence on behalf of the interested party consists of the statement of Daniel Brown, dated 15 November 2012. Mr Brown is a freelance ecologist and a director of Daniel Brown Ecology, which conducted stone-curlew surveys of Kilverstone from 2007 for the estate and for the interested party.
The legislative framework is summarised in section II of this judgment. The factual and regulatory background and Shadwell's criticism of the sustainability appraisal is summarised in section III in some detail. The detail is necessary because Shadwell's challenge involves consideration of the fine detail of the evidence before the TAAP Inspector and the evidence that was before the Core Strategy Inspectors in 2009. Section IV contains my discussion of the submissions, my conclusion that Shadwell's application must be dismissed, and my reasons for that conclusion. The written and oral submissions on behalf of the Council and the Interested Party made much of the fact that the position taken by Shadwell in these proceedings was radically different to the position it had taken at earlier stages of the development plan process. Although not stated expressly, it was implicit that they consider this challenge is one of those (alluded to by Carnwath LJ in R (Jones) v Mansfield DC [2003] EWCA Civ. 1408 at [57] ff) made where the environmental grounds pursued are in fact a tactical means of pursuing a different objective. The point remained implicit and it has played no part in my decision.
II. The...
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