The Fairfield Partnership and Huntingdonshire District Council v Persimmon Homes (East Midl ands) Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lindsay |
| Judgment Date | 23 October 2003 |
| Neutral Citation | [2003] EWHC 2430 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO302/03 |
| Date | 23 October 2003 |
[2003] EWHC 2430 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
THE HONOURABLE MR JUSTICE LINDSAY
Case No: CO302/03
Mr C Katkowski Q.C. and Mr D. Kolinsky (instructed by Hewitsons) for the Claimant
Mr R. Purchas Q.C. and Miss J Clayton (instructed by Huntingdonshire District Council) for the Defendant
Mr A. Kelly Q.C. and Mr G. Jones (instructed by Hegarty & Co.) for the Interested Party
1 The claim before me raises the question of whether Huntingdonshire District Council circumscribed itself to an extent that was in error when it decided, in response to the claimant's objection, to propose not to modify its Local Plan Alteration so as to delete a particular allocation of land to housing. The Council instead chose the course which an Inspector had earlier recommended, that the land should be so allocated.
2 The claim is brought by the Fairfield Partnership. I shall revert later to questions as to whether the Partnership is indeed entitled to bring the claim; for the moment I shall assume that it is.
3 On the 14 th November 2002 a special meeting of the Huntingdonshire District Council (“the Council”) resolved, inter alia, that no further modification should be proposed to the Huntingdonshire Local Plan Alteration in the light of responses received and that the Council should proceed to publish a notice announcing its intention to adopt the proposals contained in that Alteration. The resolution to that effect was carried “nem. con”. On the 18 th December 2002 the Council formally adopted the Alteration. Amongst the “responses received” in the light of which, as the Council resolved, no further modification should be proposed, was a representation on behalf of the Fairfield Partnership (“Fairfield”) which included objections to a number of proposed modifications. The most material of those objections for immediate purposes is the objection to Proposed Modification PM 34 (a) whereby it was proposed to allocate some 49.88 hectares of land at Ermine Street, Huntingdon for housing development. The Ermine Street site (“Ermine Street”) is a site which could accommodate some 675 dwellings in the period to which the Alteration was addressed. Fairfield had and has no interest in Ermine Street but it claims to have an interest in a site to the south and east of Cardinal Distribution Park at Godmanchester, a site able to support development of some 650 dwellings (“Cardinal Park”). Ermine Street is owned by Persimmon Homes (East Midlands) Limited (which I will call “the Interested Party”).
4 The relevant modification to the Alteration proposed by Fairfield was two-fold; firstly, that Proposed Modification PM 3(a) allocating Ermine Street for housing should be deleted, thereby denying allocation to Ermine Street for housing development, and, in its place, secondly, that a new allocation for such development should be made, namely of Cardinal Park. Indeed, such is the scarcity of potential housing land and such is the need for homes that even success only on the first limb of its objection – thereby knocking out Ermine Street – would increase the likelihood of Cardinal Park sooner or later obtaining permission for housing development. However the Council, by resolving, as it did, that there should be no further modifications, did not accept the objection to Proposed Modification PM 3(a), amongst many others also not accepted.
5 Fairfield took the view that in doing so the Council's consideration on the 14 th November 2002 had been on a wrong basis in law, that had only matters been considered on a correct basis Fairfield's objection would have had a real prospect of being adopted, that it was entitled to have its proposal considered on a correct basis of law and that, accordingly, some or all of the Alteration, having been considered on the incorrect basis of law, should be quashed. In particular, Fairfield took the view that the Council had mistakenly and far too blandly and unquestioningly elected to follow the recommendations of the Inspector, Miss R.M. Whittaker, who had conducted a Public Local Inquiry as to the Huntingdonshire Local Plan Alteration between the 7 th March 2000 and the 4 th May 2001. She had recommended, despite the Council's then objections, that Ermine Street should be allocated for housing development. The Council, urges Fairfield, misdirected itself in law as to what was required of it before it could choose not to follow the Inspector's recommendation and could thus be safe to revert to its own earlier opposition to the allocation of Ermine Street.
6 If there was error of law at all, it is, as I have understood it, common ground that one material error suffices to entitle Fairfield to relief; I will thus look at objection PM 34 (a) – the modification allocating Ermine Street for housing development – without going on to look at the Council's failure to allocate Cardinal Park as Fairfield's argument has concentrated on Ermine Street and I have not understood its argument to include that even if the Council did not err as to Ermine Street it nonetheless erred as to Cardinal Park.
7 In order to pursue its arguments, on the 22 nd January 2003 Fairfield began proceedings against the Council under section 28of the Town and Country Planning Act 1990. On the 25 th February 2003 the Court, by consent, gave permission to the Interested Party to file evidence and to make representations as, in each case, it has done. The section 28proceedings are now before me and I have had argument from Mr Katkowski Q.C. and Mr Kolinsky for Fairfield, Mr R. Purchas Q.C. and Miss J. Clayton for the Council and from Mr A. Kelly Q.C. and Mr G. Jones for the Interested Party.
8 The section which Fairfield invokes, section 287, provides, as amended and so far as material, as follows, in subsections (1) and (2):-
“287. (1) If any person aggrieved by a unitary development plan or a local plan [minerals local plan or waste local plan] or by any alteration. or replacement of any such plan or structure plan, desires to question the validity of the plan or, as the case may be, the alteration …. or replacement on the ground –
(a) that it is not within the powers conferred by Part II, or
(b) that any requirement of that Part or of any regulations made under it has not been complied with in relation to the approval or adoption of the plan or, as the case may be, its alteration, repeal or replacement,
he may make an application to the High Court under this section.
(2) On any application under this section the High Court –
(a) ……;
(b) if satisfied that the plan or, as the case may be, the alteration, … or replacement is wholly or to any extent outside the powers conferred by Part II, or that the interests of the applicant have been substantially prejudiced by the failure to comply with any requirement of that Part or of any regulations made under it, may wholly or in part quash the plan or, as the case may be, the alteration …. or replacement either generally or in so far as it affects any property of the applicant.”
9 Mr Katkowski's argument proceeds on the basis, from which Mr Purchas and Mr Kelly do not dissent, that if the Council's consideration of the Proposed Modification PM 34 (a) was indeed in error of law, then a case would have been made out under section 287(1) (a) such that a discretion would arise under the first part of section 287 (2) (b).
10 The argument falls, as I see it, into four parts, giving rise to the following questions:-
(1) What, in law, is the test required to be passed before a Council may properly choose not to follow an Inspector's recommendation when it comes to consider a proposed modification of the Local Plan?
(2) What test did the Council in fact apply in its consideration at the meeting on the 14 th November 2002? This question will require me to look first at what test the Council was advised by its officers to apply.
(3) Was the test which the Council did apply more stringent than that required in law; in effect, did the Council set itself too high a hurdle to be cleared before it would be safe not to follow the Inspector's recommendation?
(4) If, by reason of the answer to (3) being affirmative, a discretion under section 287 (2) arises, how should the discretion be exercised?
11 I will later deal with these questions in turn but first will give the planning background to those questions.
The Planning History
12 In 1995 the Huntingdonshire Local Plan was adopted. As early as 1997 preparation for Local Plan Alteration began. By May 1999 proposed changes to the Deposit Plan were published. On the 4 th January 2000 the Town and Country Planning (Development Plan) (England) Regulations 1999 were brought into force. I shall refer to some relevant provisions from those Regulations later. In March 2000 a Local Plan Inquiry started. It ended, as I earlier mentioned, in May 2001. Unfortunately the Inspector fell ill and it was only on the 27 th February 2002 that the Inspector's Report was received by the Council. On the 18 th March 2002 the Inspector's Report was published by the Council. The Inspector took the view that additional allocations were required to be included in the Alteration so as to provide allocation in respect of some 1479 dwellings over and above such proposed allocations made by the Council which she had endorsed. She examined Cardinal Park and recommended, as a first stage in her selection of sites, that it should...
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