Trustees of the Barker Mill Estates v Test Valley Borough Council Defendant (Defendant (Second Defendant) Secretary of State for Communities and Local Government (First Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 25 November 2016 |
| Neutral Citation | [2016] EWHC 3028 (Admin) |
| Docket Number | Case No: CO/1246/2016 and CO/1901/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 November 2016 |
and
[2016] EWHC 3028 (Admin)
The Hon. Mr Justice Holgate
Case No: CO/1246/2016 and CO/1901/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jeremy Cahill QC and James Corbet Burcher (instructed by Clyde & Co LLP) for the Claimant
Richard Honey (instructed by Government Legal Department) for the Secretary of State
Michael Bedford QC (instructed by Sharpe Pritchard) for Test Valley Borough Council
Hearing dates: 19 and 20 October 2016
Introduction
The Challenge to the Revised Test Valley Local Plan
In their first claim, CO/1246/2016, the Trustees of the Barker Mill Estates bring a challenge under section 113 of the Planning and Compulsory Purchase Act 2004 ("PCPA 2004") to the Revised Test Valley Local Plan ("RTVLP") adopted by the Defendant, Test Valley Borough Council ("TVBC"), acting as the local planning authority (" LPA"). The Claimants are the freehold owners of a very substantial land holding within the area of TVBC and are promoting various sites for residential and commercial development.
Test Valley covers over 650sq km of land in western Hampshire and abuts (in a clockwise direction starting from the north) Basingstoke and Deane Borough Council, Winchester City Council, Eastleigh Borough Council, Southampton City Council, New Forest District Council and Wiltshire Council. In the southern part of Test Valley, the Borough adjoins Southampton. The Claimants own land at Adanac Park, Nursling, which is directly adjacent to the boundary between TVBC and Southampton City Council.
In 2006 TVBC adopted as a statutory development plan for its area the Test Valley Borough Council Plan. In the same year TVBC began work on a replacement for that plan. A draft Core Strategy was submitted for statutory examination in 2009, but withdrawn as a result of concerns expressed by the Inspector. Public consultation took place on the RTVLP in March to April 2013. Following revocation of the South East Plan on 25 March 2013 a further pre-submission draft was published in November 2013 and public consultation took place between January and March 2014.
The Claimants objected to the housing growth and spatial strategy proposed in policy COM1 on the basis that TVBC had identified too low a requirement for housing and the policy approach was too constrained. They also objected to the draft employment policies, particularly LE6 which restricted development at Adanac Park to B1 uses. The Claimants sought to have the policy amended to allow for B2 and B8 uses in addition to B1.
TVBC considered making amendments to its draft plan and on 31 July 2014 submitted the document to the Secretary of State for Communities and Local Government ("SSCLG") for statutory Examination. The Claimants submitted representations and took part in hearings held by the examining Inspector. The hearings took place between 11 December 2014 and 22 January 2015. The purpose of the independent Examination is to determine whether (inter alia) the plan qualifies as "sound" and whether the LPA complied with its duty to co-operate with other authorities under section 33A of PCPA 2004 (section 20(5)).
By sections 20 and 23 of PCPA 2004, an LPA may not adopt a local plan unless (in summary) either (a) the Inspector considers it reasonable to conclude, firstly that the authority complied with its section 33A duty and certain statutory requirements for the preparation of the plan, and secondly that the plan is "sound", or (b) the Inspector considers that the LPA complied with its section 33A duty and he recommends "main modifications" to the plan in order to make it sound and/or satisfy the requirements for plan preparation. If the "main modifications" procedure is followed, then the authority may not adopt the plan unless the final version includes those modifications.
The concept of "soundness" is not defined in the legislation. However, section 19(2) of PCPA 2004 provides that in preparing the plan, the LPA must have regard to (inter alia) national policies issued by the Secretary of State. They would include the National Planning Policy Framework ("NPPF"). Paragraph 182 of the NPPF explains that a plan may be considered "sound" if it is:-
" Positively prepared– the plan should be prepared based on a strategy which seeks to meet objectively assessed development and infrastructure requirements, including unmet requirements from neighbouring authorities where it is reasonable to do so and consistent with achieving sustainable development;
Justified– the plan should be the most appropriate strategy, when considered against the reasonable alternatives, based on proportionate evidence;
Effective– the plan should be deliverable over its period and based on effective joint working on cross-boundary strategic priorities; and
Consistent with national policy– the plan should enable the delivery of sustainable development in accordance with the policies in the Framework." (emphasis added)
In the case of the RTVLP the "main modifications" procedure was followed. TVBC published a schedule of proposed main modifications in April 2015. There was an opportunity between 24 April and 5 June 2015 for representations to be made on those proposals. The Claimants did so.
On 15 December 2015 the Inspector's report on his Examination of the draft plan was published. He concluded that the duty to co-operate under section 33A had been satisfied (paragraphs 7 to 14). He stated that shortcomings in the "submitted" version of the plan prevented it from being recommended for adoption. However, the Inspector recommended that the plan, as amended by the "main modifications", was sound and capable of adoption.
A report was presented to the meeting of TVBC's Cabinet on 13 January 2016 recommending that the plan be adopted on the basis of the Inspector's report. That recommendation was accepted by the Cabinet and then by the full Council. The RTVLP was adopted on 27 January 2016, thereby replacing the former local plan and becoming part of the statutory development plan.
On 8 March 2016 the Claimants issued a challenge under section 113 of PCPA 2004 to the RTVLP. Paragraph 82 of the Claimants' Statement of Facts and Grounds asks the Court to:-
(i) Quash the decision to adopt the plan;
(ii) Quash policy COM1 and the OAN figure at paragraph 5.12;
(iii) Quash Table 9 and policy LE6 relating to Adanac Park; and
(iv) Remit "both matters" to the Defendant for further preparation before publication and submission for examination of further policies.
It would appear that (ii) to (iv) relate to only two aspects of the plan and are to be treated as an alternative to (i) which would affect the whole plan. Either way, on the Claimants' own case it would be unnecessary for the whole plan to be quashed and for it to be prepared all over again from the outset.
On 17 May 2016 Patterson J granted permission under section 113(3A) for the bringing of the application.
The Challenge to the SSCLG's Decision on the Planning Appeals
In their second claim, CO/1901/2016, the Trustees of the Barker Mill Estates challenge under section 288 of the Town and Country Planning Act 1990 ("the TCPA 1990") the decision of an Inspector acting on behalf of the First Defendant, the Secretary of State for Communities and Local Government ("SSCLG"), to dismiss appeals on two sites which they own within Adanac Park.
Adanac Park comprises about 29 hectares of land which was formerly used for agriculture. Part of the Park has been developed for the headquarters of the Ordnance Survey under the umbrella of an outline planning permission granted on 16 June 2008. The rest of the land is mainly used for grazing and market gardening. The M271 runs north-south along the western boundary of the Park and connects Southampton with the M27 a short distance to the north.
In January 2014 the Claimants made 12 applications for planning permission or listed building consent in respect of 10 different plots within the Park. In December 2014 TVBC refused planning permission for 4,100 sq m of B8 and some B2 development on plot AP2, 27,600 sq m of B8 development on plot AP3 and for B1 development on plot AP5.
The Claimants appealed to the SSCLG against these refusals. An Inspector was appointed to determine the appeals on his behalf. A public inquiry was held between 26 November and 11 December 2015. In her decision letter dated 9 March 2016 the Inspector allowed the appeal on site AP5 and granted permission for B1 development, but dismissed the appeals on sites AP2 and AP3.
On 11 April 2016 the Claimants issued the claim challenging the dismissal of the appeals in respect of plots AP2 and AP3. On 17 May 2016 Patterson J ordered that the paper application for permission under section 288(4A) be adjourned to be dealt with as a "rolled up hearing" and heard at the same time as the challenge to the RTVLP. The Judge decided that a rolled-up hearing of the application for permission should take place because of the inter-relationship of the section 288 claim with the challenge to the local plan for which she had already granted permission. She stated that the proposed nine grounds of challenge were "somewhat diffuse" and would benefit from re-assessment.
In a skeleton argument relating to both claims, Mr Jeremy Cahill QC and Mr James Corbet Burcher, who...
To continue reading
Request your trial
-
R Andrew Plant v Lambeth London Borough Council
...A complaint of that nature has to demonstrate that the judgment made was irrational (see Tesco at paragraph 19; Barker Mill Trustees v Test Valley Borough Council [2016] EWHC (Admin) at paragraphs 22, 33 and 83–4). Here the buildings in question were not listed and they were not located in ......
-
Muller Property Group v Secretary of State for Communities and Local Government Cheshire East Council (Interested Party)
...is for the decision maker: for the most recent succinct exposition of that principle, see Holgate J in Barker Mill Estates (Trustees of) v Test Valley Borough Council & Anor [2016] EWHC 3028 at [22]: "Part of the Claimants challenge suggests that the NPPF has been misinterpreted. In Tesco S......
-
New Dawn Homes Ltd v Secretary of State for Communities and Local Government (First Defendant) Tewksbury Borough Council (Second Defendant)
...basis upon which the Courts may intervene was summarised in Barker Mill Estates Trustees v Test Valley Borough Council and SSCLG [2016] EWHC 3028 (Admin) (at paragraphs 22 to 26). The above principles were matters of common ground in this case. The parties' cases in the planning appeal and ......
-
The Manchester Ship Canal Company Ltd v Secretary of State for Environment, Food and Rural Affairs
...latter addressed the adequacy and availability of compensation. 84 In Trustees of the Barker Mill Estates v Test Valley Borough Council [2016] EWHC 3028, in the context of an application for statutory review of a development plan the Court said as follows: ‘ 77 In an application for statuto......
-
Table of Cases
...Ltd v St Albans City and District Council [2018] EWCA Civ 1187, [2018] JPL 1125 468 Barker Mill Estates Trustees v Test Valley BC [2016] EWHC 3028 (Admin), [2017] PTSR 408, [2017] JPL 417 11, 12 Barnet London Borough Council v Eastern Electricity Board [1973] 1 WLR 430, [1973] 2 All ER 319,......
-
Administration of Planning Law
...court should allow the authority a substantial margin of appreciation or discretion ( Barker Mill Estates Trustees v Test Valley BC [2016] EWHC 3028 (Admin) applied); (b) that it was for an inspector to conduct a rigorous examination of all the evidence received so as to enable him to reach......