The Queen (on the application of Larkfleet Homes Ltd) v Rutland County Council Uppingham Town Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins |
| Judgment Date | 08 December 2014 |
| Neutral Citation | [2014] EWHC 4095 (Admin) |
| Docket Number | Case No: CO/3063/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 December 2014 |
[2014] EWHC 4095 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Collins
Case No: CO/3063/2014
and
Mr Charles Banner and Ms Heather Sargent (instructed by Marrons Shakespeares) for the Claimant
Mr Martin Carter (instructed by the Head of Legal Services, Peterborough City Council) for the Defendant
Hearing dates: 13 th November 2014
The Claimant challenges the decision of the Defendant of 29 May 2014 to allow the Uppingham Neighbourhood Development Plan (UNP) to proceed to a neighbourhood planning referendum. Neighbourhood Development Plans (NDP) were introduced by the Localism Act 2011. Their purpose was to enable local communities to make a final decision on certain aspects of planning policies which directly affect them. There are a number of steps which have to be taken by planning authorities in drawing up plans setting out policies which will apply in their area. The statutory provisions are complex and as will become apparent, not always well drafted. They also involve relatively lengthy processes and inquiries which does nothing to reduce expense that has to be incurred. However, it is of obvious importance that all necessary procedures are followed and that powers are not misused.
The Claimant is a house-building company which has a commercial interest in 4.1 hectares of land situated to the north west of Uppingham. The Defendant's Core Strategy, adopted in July 2011, a Development Plan Document (DPD) within the meaning of the Planning and Compulsory Purchase Act 2004, provided for development in land to the west or north west of Uppingham. The location and details of future housing development was to be determined through the Site Allocations and Policies DPD (SAPDPD). The SAPDPD containing preferred options was published in October 2012. There had been inclusion of the site in which the Claimant was interested in the earlier SAPDPD proposals.
In April 2013 the Defendant published its SAPDPD proposed submission document. It was the final version which needed to be approved by an Inspector, who had to be satisfied among other things that it was sound. By then, the Localism Act 2011 had come into force so that NDPs were possible. In paragraphs 1.9 to 1.12 it is said:-
"1.9 A separate Neighbourhood Plan for Uppingham is being prepared by Uppingham Town Council. This will cover Uppingham town and parts of the surrounding area and will be subject to separate consultation, examination and referendum under the Neighbourhood Planning process.
1.10 The Uppingham Neighbourhood Plan will consider proposals for residential, employment and other land use allocations in its area and allocate sites where appropriate. Consequently no sites are allocated for development in Uppingham in this Site Allocations and Policies DPD although all other policies of the plan will apply in this Area.
1.11 Sites for residential and employment development in Uppingham that were previously identified in the Preferred Options version of this Site Allocations and Policies DPD are not carried forward in this version of the plan but will be put forward to Uppingham Town Council together with the responses to consultation that have been received for consideration through the Uppingham Neighbourhood Plan.
1.12 In the event that the Uppingham Neighbourhood Plan does not address the need to allocate residential and employment sites in its area or if the Plan fails to pass the public examination and referendum processes, a review of the Rutland Local Plan (to commence in 2014) will consider the issues and may allocate sites if required".
The initial draft of the UNP was produced in May 2013. In the foreword it states that it gave a "unique opportunity for residents and businesses to influence the development of the town over the next thirteen years". Residential development was seen to be a key aspect of the plan. It identified three sites which had been selected for residential development to the west of the town none of which included the site in which the Claimant had an interest. The Claimant through Mr Banner submitted a document described as a skeleton argument in October 2013 which asserted that the adoption of the NDP would be unlawful. Essentially it included the matters relied on in this claim. The alleged unlawfulness was not accepted and the final draft to go to a local referendum was produced in December 2013. This maintained the three sites for housing, labelling them A, B and C and providing for at least 170 homes during the period up to 2026.
Directive 2001/42/EC (the SEA Directive) applies so that consideration of the impact of policies in plans on the environment was required. The Directive has been applied domestically by the Environmental Assessment of Plans and Programmes Regulations 2004/1633. Regulation 5 of the Regulations (which reflects Article 3(2) and (3) of the Directive) so far as material provides that any plan which is prepared for town and country planning or land use and which includes projects which are within the relevant definition, as this does, requires during its preparation and before its adoption the carrying out of an environmental assessment (Paragraph 5(1) and (2)). Paragraph 5(6) provides:-.
"An environmental assessment need not be carried out:-
(a) for a plan of the description set out in paragraph (2)…which determines the use of a small area at local level; …unless it has been determined under Regulation 9(1) that the plan …… is likely to have significant environmental effects…."
Regulation 9 provides, so far as material:—
"(1) The responsible authority shall determine whether or not a plan…of a description referred to in….
(b) paragraph 6(a) of [Regulation 5] is likely to have significant environmental effects….
(3) Where the responsible authority determines that the plan…..is unlikely to have significant environmental effects (and, accordingly, does not require an environmental assessment), it shall prepare a statement of its reasons for the determination"
Regulation 9(2) requires that criteria set out in Schedule 1 of the Regulations must be taken into account. It is not necessary for the purposes of this case to spell them out. Schedule 2 paragraph 6 is important. It provides for assessment of:-
"The likely significant effects on the environment, including short, medium and long term effects, permanent and temporary effects, positive and negative effects….."
It then lists the issues which are material. The important requirement in the context of this claim is that there must be an assessment of both any positive and negative effects which are significant.
Three grounds are relied on by Mr Banner on behalf of the Claimant. First, it is said that the legislation on its true construction does not permit allocation of sites for particular development in NDPs. Secondly, it is said that there was a failure to apply the correct test in concluding that the UNP fell within Regulation 5(6)(a) of the 2004 Regulations in that it comprised a small area at local level. Thirdly, it is said that there was a failure to carry out the required environmental assessment process properly because of a failure to consider whether the proposals would cause any significant positive environmental effects.
The first ground requires consideration of a number of legislative provisions. Section 37 of the 2004 Act as amended by the Planning Act 2008 and the Localism Act 2011 provides so far as material:-
"(2) Local development document must be construed in accordance with Section 17…..
(3) A development plan document is a local development document which is specified as a development plan document in the local development scheme".
Section 38(3) provides that outside Greater London in England the development plan is, so far as material for the claim:-
(b) the development plan documents (taken as a whole) which have been adopted as approved in relation to that area and
(c) the neighbourhood development plans which have been made in relation to that area".
Section 38(3)(c) was added by the Localism Act 2011.
Section 17 of the 2004 Act is headed 'local development documents'. It has been amended by the Planning Act 2008. As amended and as far as material it provides:-
"17(3) The local planning authority's local development documents must (taken as a whole) set out the authority's policies (however expressed) relating to the development and use of land in their area….
(7) regulations under this section may prescribe:-
(za) which descriptions of documents are, or if prepared are, to be prepared as local development documents….
(8) A document is a local development document only in so far as it or any part of it:-
(a) is adopted by resolution of the local planning authority as a local development document;
(b) is approved by the Secretary of State under section 21 or 27".
It is not necessary to refer to the powers of the Secretary of State. Sections 19 and 20 contain details of the processes required in preparing local development documents.
Section 20 requires that any development plan document must be submitted to the Secretary of State. There will be an independent examination carried out by a person appointed by the Secretary of State who must be satisfied that it complies with the requirements of the Act and any regulations and is sound. That exercise was carried out for the SAPDPD. The inspector...
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