Zurich Assurance Ltd v Winchester City Council and Another

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Sales
Judgment Date18 March 2014
Neutral Citation[2014] EWHC 758 (Admin)
Date18 March 2014
Docket NumberCase No: CO/5057/2013

[2014] EWHC 758 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Sales

Case No: CO/5057/2013

Between:
Zurich Assurance Limited
Claimant
and
(1) Winchester City Council
(2) South Downs National Park Authority
Defendants

Jeremy Cahill QC & James Corbet Burcher (instructed by Shoosmiths LLP) for the Claimant

Michael Bedford & Emma Dring (instructed by Winchester City Council) for the Defendants

Hearing dates: 11/2/14–12/2/14

Mr Justice Sales

Introduction

1

This is an application pursuant to section 113 of the Planning and Compulsory Purchase Act 2004 for an order that parts of the Winchester District Local Plan Part 1 – Joint Core Strategy ("the Core Strategy"), jointly adopted by the Defendants with effect on 20 March 2013, be quashed or remitted for further examination. I refer to the Defendants as "WCC" and "SDNPA", respectively.

2

WCC had the principal role in developing the Core Strategy for adoption. The Core Strategy provides policy at a strategic level for the development of its area. Amongst other things, the Core Strategy sets a figure for the amount of new housing provision to be delivered in WCC's area over a 20 year period and guidance as to where it is to be provided. The Core Strategy sets an overall requirement of 12,500 new homes to be provided in WCC's area in the period 2011–2031.

3

The Core Strategy was developed and adopted against the background of another plan, the regional strategy for the South East adopted in 2009, known as the South East Plan. The South East Plan set a regional requirement for new housing for the period 2006–2026, of which a requirement of 12,240 was allocated to WCC's area.

4

The importance of the Core Strategy is not in doubt. It forms part of the local development plan for WCC's area under the 2004 Act, and applications for residential and other development will be assessed against its policy provisions and will be expected to comply with it, absent good reason not to: see section 38(6) of the 2004 Act and section 70(2) of the Town and Country Planning Act 1990. It also sets the framework for development by WCC of more detailed development plan documents below the strategic level, which will themselves form part of the local development plan for WCC's area.

5

The Claimant ("Zurich") owns a substantial area of land in WCC's area, at Micheldever Station. It hopes at some stage to be able to develop that land by building houses on it. However, Micheldever Station is not an area designated for development in the Core Strategy.

6

Zurich's challenge to the Core Strategy was brought within time, but there is a dispute between the parties whether Zurich qualifies as "a person aggrieved by" the Core Strategy, as required by section 113(3) of the 2004 Act in order to be entitled to make this application. In the course of development of and consultation on the Core Strategy, including its examination by an Inspector (Mr Nigel Payne) appointed by the Secretary of State, Zurich did not itself participate or make representations about the Core Strategy. Instead, a firm of planning consultants, Barton Willmore, participated and made representations. It has now emerged that they did so in order to promote the interests of their client, Zurich, but that was not evident at the time.

7

A developed draft of the Core Strategy was submitted to the Secretary of State for independent examination by the Inspector under section 20 of the 2004 Act. The Inspector approved the Core Strategy for adoption. He found the Core Strategy (with modifications proposed by him) to be "in general conformity" with the relevant regional strategy in place at the time, the South East Plan, as required by section 20(5)(a) and section 24(1)(a) of the 2004 Act; he found the Core Strategy (as modified) to be "sound", as required by section 20(5)(b) of the 2004 Act; he found that WCC had complied with the duty to co-operate with other relevant authorities in relation to planning of sustainable development set out in section 33A of the 2004 Act, as required by section 20(5)(c) of the 2004 Act; and he found that an adequate Sustainability Appraisal had been carried out. In particular, the Inspector reviewed the figure for new residential development proposed by WCC (11,000 new homes) and required that it be increased to 12,500 in the final version of the Core Strategy, in the form in which it was to be adopted.

8

Zurich's challenge to the Core Strategy is made on three Grounds (or, more accurately, groups of grounds):

i) Ground One: The Inspector made a methodological error in his assessment of the proposed housing requirement, by failing to have regard to an existing shortfall against the housing requirements in the South East Plan. He therefore failed to assess the Core Strategy correctly as required under section 20(5) of the 2004 Act and with proper regard to the National Planning Policy Framework promulgated in March 2012 ("the NPPF"). The Inspector also failed to give adequate reasons for his decision. WCC erred in law by adopting the Core Strategy, following the Inspector's error;

ii) Ground Two: The Inspector erred in concluding that WCC had complied with the duty of co-operation in section 33A of the 2004 Act. The Inspector also failed to give adequate reasons for his decision. WCC therefore erred in law by adopting the Core Strategy, which had been approved by the Inspector on an unlawful basis; and

iii) Ground Three: Both WCC and the Inspector erred in concluding that the Sustainability Appraisal which accompanied the submission version of the Core Strategy complied with the requirements of the Strategic Environmental Assessment Directive 2001/42/EC ("the SEA Directive") and the Environmental Assessment of Plans and Programmes Regulations 2004 ("the Environmental Assessment Regulations") which implement it. The Inspector should have required further environmental assessment to be carried out before the Core Strategy could be adopted.

9

Although some of the Grounds of challenge are directed to criticism of the Inspector, it was common ground that the Claimant could rely upon any unlawfulness it could establish in relation to what the Inspector did in order to attack the lawfulness of the adoption by WCC and SDNPA of the Core Strategy. Although the Secretary of State was not joined as a party, Zurich had notified him of its claim and served him with the papers, as required under CPR Part 8 and paras. 22.4–22.5 of PD8A. The Secretary of State did not seek to be joined as a party.

Legal and Planning Framework

(i) The 2004 Act

10

The Core Strategy qualifies as a "development plan document" for the purposes of the 2004 Act. Once such a core strategy is adopted by a local planning authority, it becomes part of the statutory development plan of that authority, with the results indicated above.

11

At the time when the Core Strategy was drawn up, subjected to examination in public and adopted, the 2004 Act required a local planning authority to have regard to the regional strategy for its area in drawing up its own development plan documents: section 19(2)(b). Section 24(1)(a) provided that such local development documents "must be in general conformity with" the regional strategy.

12

The regional strategy for WCC's area was the South East Plan. This had been adopted in 2009 after an elaborate process of evidence gathering and consultation. The estimates of the regional requirement for new housing included in the South East Plan included an allocation of 12,240 new dwellings to WCC's area for the period 2006–2026. The estimates in the South East Plan were based on demographic and other evidence dating from about 2003, which was very dated by the time the Core Strategy was developed, consulted upon, examined and then adopted in 2012/2013.

13

In mid-2010 the Coalition Government announced that the layer of regional strategy planning was to be abolished, and it became clear that the South East Plan would be revoked. However, it was not until 25 March 2013 (a few days after adoption of the Core Strategy) that the South East Plan was in fact formally revoked. The obligation for the Core Strategy to be in general conformity with the South East Plan remained in place down to the adoption of the Core Strategy.

14

The notion of "general conformity" of local development plans with a regional strategy imports a limited degree of latitude for local plans to depart from what is set out in a regional strategy: see Persimmon Homes (Thames Valley) Ltd v Stevenage BC [2005] EWCA Civ 1365; [2006] 1 WLR 334.

15

Section 20 of the 2004 Act provides for independent examination of development plan documents. A local planning authority must submit every development plan document, when it believes it is ready, to the Secretary of State for independent examination. The examination is carried out by an inspector appointed by the Secretary of State. Section 20(5) provides as follows:

"(5) The purpose of an independent examination is to determine in respect of the development plan document–

(a) whether it satisfies the requirements of sections 19 and 24(1), regulations under section 17(7) and any regulations under section 36 relating to the preparation of development plan documents;

(b) whether it is sound; and

(c) whether the local planning authority complied with any duty imposed on the authority by section 33A in relation to its preparation."

16

There is no presumption as to soundness of a development plan document: Blyth Valley BC v Persimmon Homes (North East) Ltd [2008] EWCA Civ 861; ...

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