The Queen (on the application of St Albans City and District Council) v Secretary of State for Communities and Local Government Defendant and Others (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Sir Ross Cranston |
| Judgment Date | 12 July 2017 |
| Neutral Citation | [2017] EWHC 1751 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 July 2017 |
| Docket Number | Case No: CO/26/2017 |
[2017] EWHC 1751 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Ross Cranston
(Sitting as a Judge of the High Court)
Case No: CO/26/2017
Matthew Reed QC (instructed by Legal Services, St Albans City and District council) for the Claimant
Mark Westmoreland Smith (instructed by GLD) for the Defendant
Hearing dates: 21 and 22 June 2017
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is a rolled-up hearing of an application for judicial review by the claimant, St Albans City and District Council ("the Council" or "St Albans"), to quash the decision of the Secretary of State for Communities and Local Government ("the Secretary of State"), made by one of his planning inspectors. A number of neighbouring local authorities are interested parties to the claim.
The inspector's decision was that the Council had failed to comply with the duty to cooperate with neighbouring planning authorities contained in section 33A of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") when producing its strategic local plan ("the plan" or "the local plan"). That duty was introduced by the Localism Act 2011 following the abolition of regional spatial strategies and the return of spatial planning powers to local planning authorities: see Samuel Smith Old Brewery (Tadcaster) v Selby District Council [2015] EWCA Civ 1107; [2016] PTSR 146.
In broad terms the issue in the case is whether the planning inspector was correct about the breach of the duty. In that regard at least two questions have arisen. Did the duty to cooperate continue when in the Council's eyes there was an impasse between it and the neighbouring authorities on the important issue of what constituted the housing market area for its district? And in considering whether the duty was on the whole fulfilled could cooperation in one area such as economic development be balanced against its absence in another such as housing?
Background
The Council is the local planning authority for the St Albans District. Joint working with neighbouring authorities culminated in 2008 in a strategic housing market assessment (SHMA) for the London commuter belt west. Those neighbouring authorities included Dacorum Borough Council, Hertsmere Borough Council, Three Rivers District Council, Watford Borough Council and Welwyn Hatfield District Council.
Subsequently, the Council employed consultants, Housing Vision. They produced a series of reports: a Strategic Housing Market Assessment in 2013; an update to this in 2015; and a report dated May 2016. After outlining the different approach to the issue others had taken (explained below), Housing Vision's May 2016 report reiterated its earlier approach: there was a core housing market area, basically the St Albans district; a wider housing market area, comprising the areas of neighbouring local authorities; and a peripheral housing market area, London borough areas nearest to St Albans. Essentially Housing Vision's definition of the St Albans' market area is that whilst there is an established market relationship with local authorities throughout Hertfordshire, St Alban's housing market is distinctive in that demand pressures from London have a greater influence and drive up house prices and rents.
In 2014, four neighbouring authorities — Dacorum Borough Council, Hertsmere Borough Council, Three Rivers District Council and Watford Borough Council, known collectively as the South West Herts Group – had met to consider a joint strategic housing market assessment. They invited St Albans to join in the commissioning. It refused although it was prepared to support a "reference group". In early 2015 the South West Herts Group informed the Council that the consultants it had engaged, G L Hearn and Regeneris, had confirmed their initial recommendation that the appropriate housing market area and functional economic market area (FEMA) included St Albans. In mid-March the Council was invited to reconsider and join with the other local planning authorities in commissioning the consultants' work. In a short email on 30 April 2015 the Council offered to cooperate with the consultants to the South West Herts Group but again declined to become a commissioning partner.
Meanwhile, from 2012, the Council had been preparing its local strategic plan, as it was obliged to under sections 16 and 17 of the 2004 Act. During the process there were meetings with Dacorum District Council, under the banner "Duty to Cooperate" in 2015 and 2016. At one of the meetings, on 12 February 2015, it was agreed that there needed to be further discussion as to whether St Albans could assist in meeting some of Dacorum's future housing needs on the Gorhambury land ( east of Hemel Hempstead.
On 8 January 2016 the South West Herts Group wrote to the Council, in advance of publication of St Albans' pre-submission version of plan, seeking assurances that the Council was satisfied that it had met the requirements of national planning policy in identifying St Albans' objectively assessed need (OAN) for housing, including consultation with neighbouring local authorities; had developed robust employment evidence, given the South West Herts Economic Study; and had taken appropriate account of what the South West Herts Group's consultants had concluded about the appropriate housing market area and functional economic market area. Later that month St Albans replied to the South West Herts Group's letter that it was satisfied in respect of the matters raised. The South West Herts Group published its consultants' reports in February 2016.
In a letter dated 11 April 2016 the South West Herts Group requested a meeting with St Albans and the provision of detailed information so that its consultants could better understand the reasons for the differences between the two sets of consultants about the housing market. There was no reply so a follow up email was sent in early June 2016. The response came some five months later on 23 September 2016.
In that reply the Council wrote to the South West Herts Group stated that despite the Inspector's letter (see below), it wished to continue the Council's ongoing duty to consult. With that in mind it proposed a meeting. The points to be considered, including at the political level, included the specific outcomes which the group felt that the mutual duty to cooperate had failed to deliver and the solutions and way forward; the basis for the group producing studies covering some areas (including the St Albans) outside their districts, without the agreement of these other areas; the view to be taken now on the agreed joint technical work from 2008–2009; the level of political commitment and cross border agreement to deliver the growth indicated in the group's studies; the benefits of information sharing on demographic issues; and how new technical work would be discussed in future.
Draft plan submitted and planning inspector appointed
In August 2016, the Council submitted its draft plan to the Secretary of State for examination. An aspect of strategy in the plan was that development in the St Albans district could be accommodated in the area west of the M1 proximate to Hemel Hempstead, Hemel Hempstead being part of Dacorum Borough Council. For housing the plan adopted the approach its consultants had recommended. A part of economic development covered in the plan was the Maylands growth corridor ("Maylands") and the employment opportunities it would provide for both St Albans and Dacorum borough residents.
The Secretary of State appointed a planning inspector, Mr David Hogger ("the Inapector"), to examine the plan under section 20 of the 2004 Act. Mr Hogger had acted as the examining inspector for Dacorum Borough Council's Core Strategy. In his report into that plan dated July 2013, he indicated a need for cooperation between St Albans with Dacorum Borough Council in assessing how land east of Hemel Hempstead, within St Alban's district, might contribute to meeting Dacorum's needs. Dacorum's core strategy stated, inter alia, that it was to be partially reviewed after completion of the site allocations development plan, with evidence gathering for that beginning in 2013.
Amongst the material the Council provided to the Inspector was a document demonstrating that it had complied with its duty to consult, entitled "St Albans City and District Strategic Local Plan, Duty to Cooperate Statement of Compliance", dated August 2016. One point the document referred to was the difference between the Council and the neighbouring local authorities as regards identifying a housing market area.
In a document entitled "Preliminary concerns of the Inspector" dated 22 August 2016, Mr Hogger stated that he was concerned that the duty to cooperate had not been met. He added that he had decided that there should be an initial hearing session ahead of the examination into the plan to consider whether there had been compliance with the duty. In that letter the Inspector explained that his concerns arose from the representations of neighbouring local authorities which had been made at the...
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