University of Bristol v North Somerset Council

JurisdictionEngland & Wales
JudgeHer Honour Judge Alice Robinson
Judgment Date07 March 2013
Neutral Citation[2013] EWHC 231 (Admin)
Docket NumberCase No: CO/5259/2012
CourtQueen's Bench Division (Administrative Court)
Date07 March 2013

[2013] EWHC 231 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Her Honour Judge Alice Robinson

Sitting as a Deputy High Court Judge

Case No: CO/5259/2012

Between:
University of Bristol
Claimant
and
North Somerset Council
Defendant

Ian Dove QC (instructed by Veale Wasborough Vizards) for the Claimant

Suzanne Ornsby QC and Mark Westmoreland Smith (instructed by the Head of Legal Services) for the Defendant

Introduction
1

This is an application to quash certain policies of the North Somerset Core Strategy ("the Core Strategy") pursuant to s.113 of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act"). The Claimant ("the University") owns approximately 70 hectares of land near Long Ashton to the south west of Bristol within the Defendant's ("the Council's") administrative area and of which it is the local planning authority. The University's land lies within the Bristol-Bath Green Belt.

2

The Council adopted the Core Strategy on 10 April 2012 pursuant to the 2004 Act and regulations made thereunder. Policy CS6 states that the Green Belt will remain unchanged during the plan period. Policy CS13 provides that the number of dwellings for which land will be identified in the plan period of 2016 to 2026 is 14,000. This had been increased from the draft policy figure of 13,400 dwellings to correct a mathematical error. The University had put in objections to the draft Core Strategy seeking to increase the housing numbers for which provision was made and arguing that a review of Green Belt boundaries should take place and an urban extension to the south west of Bristol should be identified which would include its land. Those objections were rejected by the Inspector who conducted an independent examination into the Core Strategy. The only modifications he recommended were the correction from 13,400 to 14,000 dwellings and the addition of the following words to Policy CS13: "the appropriate level of new homes will be reviewed in 2016 and 2021."

3

The University now seeks to challenge the adoption of those policies and other policies consequential upon them on three grounds which I summarise as follows:

(1) The Council is in breach of the duty to co-operate in s.33A of the 2004 Act, as amended by the Localism Act 2011, and the Inspector wrongly held that the duty did not apply;

(2) The Inspector failed to give adequate reasons for his conclusion that the Core Strategy was sound so far as the scale and distribution of housing development was concerned;

(3) The Inspector's conclusion that the Core Strategy was in general conformity with Regional Planning Guidance Note 10 ("RPG10"), as required by s.24(1)(a) of the 2004 Act, was unlawful.

4

The grounds on which the Core Strategy may be challenged are set out in s.113(3) of the 2004 Act which provides that

"A person aggrieved by a relevant document may make an application to the High Court on the grounds that –

(a) the document is not within the appropriate power;

(b) a procedural requirement has not been complied with."

It is common ground that this imports the normal principles of administrative law, see Blyth Valley BC v Persimmon Homes (North East) Ltd [2009] JPL 335, per Keene LJ at paragraph 8.

5

In order to deal with the grounds of challenge it is necessary to explain in some detail the legislative and policy background.

Background

6

The Core Strategy is a local development document prepared pursuant to the provisions of Part 2 of the 2004 Act. By virtue of s.17(7) of the 2004 Act regulations may prescribe which local development documents are to be development plan documents together with their form and content and other procedural requirements. The Town and Country Planning (Local Development)(England) Regulations 2004 (SI 2004 No.2204) make provision for a core strategy which is to be a development plan document "containing statements of – (i) the development and use of land which the local planning authority wish to encourage during any specified period…", see regulations 6 and 7.

7

In preparing a development plan document the local planning authority must have regard to a number of matters including the regional strategy for the relevant area, s.19(2)(b). Further, s.24(1)(a) provides that local development documents "must be in general conformity with – (a) the regional strategy…"

8

Prior to the 2004 Act the Secretary of State provided regional guidance as to strategic issues in a Regional Planning Guidance Note. The Regional Planning Guidance Note for the South West region was RPG10 which was approved by the Secretary of State in September 2001. By virtue of the Town and Country Planning (Initial Regional Spatial Strategy)(England) Regulations 2004 (SI 2004 No.2206) RPG10 was prescribed as the initial regional strategy for the purposes of the 2004 Act (then called a Regional Spatial Strategy).

9

Paragraph 1.2 of RPG10 states that the RPG "sets out a broad development strategy for the period to 2016 and beyond." Objectives for the Northern sub-region (which includes Bristol and North Somerset) are set out in Policy SS3 and include making adequate provision for future development requirements in Principal Urban Areas and seeking a more sustainable pattern of development. Paragraph 3.10 notes that some growth relating to Principal Urban Areas including Bristol has been leaping the Green Belt to nearby commuter towns leading to less sustainable patterns of development and travel. As a result provision was made for the Green Belt boundaries to be reviewed and urban extensions:

" Policy SS 4: Green Belt

Green Belts in the region should continue to fulfil the purposes set out in PPG2. As a key element of the future planning of the region, local authorities when preparing their development plans should:

• critically review the green Belt to examine whether boundary alterations are needed to allow for long term sustainable developments needs;

• remove land from the Green Belt for development, if, on balance, this would provide the most sustainable solution for accommodating future development requirements;

• include additional land within the Green Belt where clearly necessary for the purposes set out in PPG2.

Policy SS8: The Bristol Area

Local Authorities, developers, infrastructure and transport providers and other agencies should work together to achieve the following for the Bristol area:

* balanced provision of additional housing… within the urban area or as planned urban extensions

* a review of the Green Belt in accordance with Policy SS4"

10

In due course steps were taken to revise RPG10 and in July 2008 the Secretary of State published a draft Revised Regional Strategy incorporating changes for consultation following a public examination. The draft Revised Regional Strategy ("dRSS") had therefore gone a considerable way down the statutory processes towards formal approval. The only remaining step was for the Secretary of State to consider any representations to the proposed changes and then publish the final document. However, the final document never was published for reasons which will become apparent.

11

Chapter 4 of the dRSS 'Sub-Regional Policies and Housing Distribution' identified a West of England Housing Market Area ("HMA") centred on Bristol but including several surrounding authorities including North Somerset. Policy HMA1 provided that:

"In the West of England HMA provision will be made for:

………….

• growth of at least 137,950 homes, distributed between the local authorities as…

Bristol 36,500

North Somerset 26,750

Bristol SSCT

Provision for sustainable housing growth will comprise:

• 10,500 new homes at Area of Search 1A (9,000 within North Somerset and 1,500 in Bristol)"

12

This was a policy to which the Council had objected. Area of Search 1A lay to the south west of Bristol where an urban extension was proposed and the policy made clear that it included land in Bristol City Council's area but that the bulk of the housing would have to be accommodated in North Somerset. In consequence changes were required to the Green Belt:

"At Bristol… the RSS identifies urban extensions as part of the most sustainable solution for delivering housing and other development. This has required changes to be made to the general extent of the Bristol and Bath… Green Belts." Paragraph 4.0.15

13

In the run up to the May 2010 general election the Conservative Party indicated that if elected it would abolish regional strategies. In November 2009 the Council published its consultation draft Core Strategy. This made provision for 17,750 dwellings excluding an urban extension to the south west of Bristol. Instead possible options for urban extensions were indicated with the document making it clear that these were not supported by the Council. In effect the Council was 'hedging its bets.' If regional strategies were retained the Council recognised that the Core Strategy would have to be in general conformity with the dRSS and make provision for an urban extension but on the other hand if regional strategies were not retained the Council would be able to make lower provision for housing with no urban extension.

14

After the May 2010 election the Coalition Government announced that it would abolish regional strategies and that decisions on housing supply lay with local planning authorities. This has been described as a move away from top-down planning to bottom-up planning. In July 2010 the government purported to revoke all regional strategies. At the same time the Council's Executive approved a further consultation on the draft Core Strategy which...

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