QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| COGENT LAND LLP
|- and -
|ROCHFORD DISTRICT COUNCIL
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BELLWAY HOMES Ltd
Gregory Jones QC and Juan Lopez (instructed by the Solicitor, Rochford District Council) for the Defendant
Paul Brown QC (instructed by Reynolds Porter Chamberlain) for the Interested Party
Hearing dates: 30th May and 1st June 2012
Crown Copyright ©
Mr Justice Singh :
(1) the defendant's selection of alternatives for potential general locations for housing (alleged failure to explain the initial selection process);
(2) the defendant's reasons given for preferring or rejecting reasonable alternatives (alleged failure to give an adequate explanation of the comparative assessment);
(3) the defendant's Addendum of July 2011 (alleged inadequacies in that document);
(4) whether, even if the Addendum was otherwise adequate, it was capable in law of curing the alleged earlier defects;
(5) the claimant also complains that in failing to re-open the public hearings the inspector failed to comply with the requirements of natural justice. Although the Secretary of State is not a defendant in these proceedings, it is argued that the defendant erred in law by adopting the inspector's report in spite of this alleged breach of natural justice.
The development of the RCS in more detail
"The council will allocate land in locations that are considered sustainable and such locations will be tested through the Strategic Environmental Assessment/Sustainability Appraisal process. The council will not allocate sites which are considered sensitive due to landscape designations, biodiversity issues or where there may be a risk of flooding."
"Within the District there are three tiers of settlements. The top tier is that comprising Hawkwell/Hockley, Rayleigh and Rochford/Ashingdon. These are all towns and villages with a good range of services and facilities as well as some access to public transport. They are capable of sustaining some expansion, in-filling and redevelopment."
"Taking into account such sustainability issues, the council believes that the settlement pattern should be focussed on existing settlements, with the main settlements in the District taking the majority of development required. The majority is defined as 90% of the housing development required. The main settlements are considered to be Hawkwell/Hockley, Rayleigh and Rochford/Ashingdon."
- "Greater dispersal to minor settlements, enabling possible regeneration of local facilities.
- Split the housing allocation evenly between the parishes (excluding Foulness), so that each area gets a small amount of housing.
- Develop a new settlement, well related to transport links and providing its own basic infrastructure.
- Focus solely on an expansion of one settlement, creating a significant urban expansion."
- "Allocate the total number of housing units to the top (90%) and second tier (10%) settlements, to gain a smaller number of large sites which will deliver the greatest amount of infrastructure improvements.
- A timescale will be specified detailing the expected phasing of development."
• "The council will set out a policy detailing a settlement hierarchy split into three tiers based on services and sustainability.
• The council will set out a policy detailing a timescale for the expected phasing of development.
• The council will set out a policy allocating the total number of housing units to the top (90%) and second tier (10%) settlements, to gain a smaller number of large sites which will deliver the greatest amount of infrastructure improvements. The split (with approximate numbers) will be as follows: …"
There then followed a table with a description of the relevant location and the approximate number of units envisaged to be allocated there. The total number of units envisaged was 4,600. The number of units envisaged for Rochford/Ashingdon was 1,000.
• "Greater dispersal making more use of settlements in the East of the District.
• Greater dispersal to minor settlements, enabling possible regeneration of local facilities.
• Focus solely on an expansion of one settlement, creating a significant urban expansion."
"In reaching a decision about the broad distribution of future housing the starting point is that the top tier of settlements – Rayleigh (population 30,196), Rochford/Ashingdon (population 10,775), and Hockley/Hawkwell (population 20,140) are best placed to accommodate expansion."
"The top tier settlements are generally better located in relation to the highway network, though the provision of new housing must be used as an opportunity to seek infrastructure improvements, particularly in relation to the highway network."
"Rochford/Ashingdon has in theory reasonably good transport links to Southend and the A127, but in practice the area is heavily congested with congestion on Ashingdon Road being amongst the worst in the District. To the West, Hall Road links directly to the Cherry Orchard Way link road, but the railway bridge at the eastern end of Hall Road is a severe constraint on traffic movements."
"There are environmental designations on the West side of Ashingdon north of the railway line and Rochford town centre is a conservation area and its setting must be protected. There are some opportunities for expansion, though road infrastructure will need to be carefully considered."
"The District of Rochford is situated within a peninsula between the Rivers Thames and Crouch, and is bounded to the East by the North Sea. The District has land boundaries with Basildon and Castle Point District and Southend-on-Sea borough councils. It also has marine boundaries with Maldon and Chelmsford Districts. The District has linkages to the M25 via the A127 and the A13 and direct rail links to London. … The landscape of the District has been broadly identified as being made up of three types:
Crouch and Roach Farmland; Dengle and Foulness Coastal; and South Essex Coastal Towns. The latter of these three is least sensitive to development.
The character of the District is split, with a clear East-West divide. Areas at risk of flooding and of ecological importance are predominantly situated in the sparsely populated, relatively inaccessible East. The West of the District contains the majority of the District's population, has better access to services and fewer physical constraints."
"It is the not the purpose of the Core Strategy to set out the precise locations for new development - this is done through the Allocations Development Plan Document. Instead, the Core Strategy will set out the general approach for the allocations document.
The concept of sustainable development is at the heart of any decisions with regards to the location of housing. …
As described in the Characteristics chapter of this document, the District's settlements can be divided into four tiers, with the settlements in the higher tiers being generally more suitable to accommodate additional housing development for the reasons described above. The settlement hierarchy is as follows …"
There then followed a table setting out in numbered tiers 1 to 4 the following:
1. Rayleigh; Rochford/Ashingdon; Hockley/Hawkwell.
2. Hullbridge; Great Wakering.
4. All other settlements.
"It is considered that West Rochford is a more suitable location given its proximity to the train station, town centre and its relationship with areas of significant employment growth potential at London Southend airport and its environs. Traffic flows from new development to the East of Rochford would be predominantly through the centre of the town centre resulting in significant congestion."
"The SEA Regulations set out certain requirements for Reporting the SEA process, and specify that if an integrated appraisal is undertaken (i.e. SEA is subsumed within the SA process, as for the SA of the Rochford LDF), then the sections of the SA Report that meet the requirements set out for Reporting the SEA process must be clearly signposted. The requirements for Reporting the SEA process are set out in Appendix 1 and within each relevant section of this Report."
"An emerging draft of the revised Preferred Options policies was then subject to SA in October 2008. A summary of the results of this appraisal is provided below, with the detailed working matrices provided in Appendix vii. On the whole, the findings of the SA suggest that the emerging Core Strategy policies will make significant contributions to the progression of SA objectives."
"The actual locations for growth proposed in the policy are considered to be the most sustainable options available, within the context of the overall high levels of population growth being proposed in the East of England Plan. The policy recognises the distinctive landscape and bio-diversity areas in the District, (including coastal landscapes and flood-prone areas in the East of the District) and takes an approach to development that minimises impacts on these areas through steering development toward the more developed Western side of the District."
"An outline for the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties encountered in compiling the required information:
This work, undertaken by Essex County Council's Environmental Assessment Team is available in the Regulation 25 Issues and Options SA Report, and is summarised in section 4 of this Report. Details of how the assessment was undertaken are provided in section 3 of this SA Report (appraisal methodology), and difficulties encountered in compiling information summarised in Section 4 of this report."
"In light of the recent High Court ruling in Save Historic Newmarket v Forest Heath District Council, Enfusion advised the Council that it would be prudent to undertake a review of the Core Strategy Sustainability Appraisal, ensuring compliance with the new case law on SEA arising from this ruling. Rochford District Council has subsequently requested the issuing of a decision on the soundness of the Core Strategy be delayed to enable the Council to undertake such a review. The Planning Inspectorate has accepted this request and the Council commissioned Enfusion in May 2011 to undertake the work. In response to the findings of the Forest Heath case, this Addendum SA report provides a summary of the alternatives considered throughout the production of the plan setting out the reasons for selecting/rejecting those alternatives. It also includes consideration of more detailed housing locations (than previously appraised). … This Addendum Report should be read in conjunction with previous Sustainability Appraisal Reports and iterations of the Core Strategy, in particular the SA Report of the LDF Core Strategy proposed submission draft DPD [Development Plan Document] (2009) for a full account of how the Sustainability Appraisal has influenced the process to date."
"The recent Forest Heath High Court ruling and recommendations by DCLG in its report on the effectiveness of SEA and SA have clarified and provided an additional interpretation of the EU SEA Directive. This section of the SA Report Addendum therefore seeks to provide a clear summary of the alternatives considered throughout the SA process and the reasons for selecting/rejecting those alternatives."
"As illustrated above, the Council has considered the results of the SA of issues and options (alternatives) in its selection and rejection of alternatives for plan-making. The Sustainability Appraisal considered a range of issues considered to be of key importance to the development of the Core Strategy. This included consideration of housing numbers and general locations for development (strategic options 4 and 5). The SA found that option E, the allocation of housing to the top and second tier settlements to gain a smaller number of large sites would have the most positive effects of all the options."
"In light of the Forest Heath Ruling, it was decided to further develop this appraisal, considering the more detailed locations for development within individual top and second tier settlements. The recent publication (in February 2010) of the LDF Allocations DPD Discussion and Consultation Document has also enabled a further consideration of the realistic locations for development, as it incorporates the findings of the Call for Sites process and Strategic Housing Land Availability Assessment (SHLAA)."
"Detailed appraisal of housing locations were undertaken for each of the top and second tier settlements and Canewdon, with full details provided in Appendix 1. …"
"was selected as it is a sustainable location, particularly in terms of accessibility, economy and employment, and balanced communities. In addition, the location relates well to London Southend airport and proposed employment growth there, is not subject to significant environmental constraints which would inhibit development, and is of a scale capable of accommodating other infrastructure, including a new primary school which would have wider community benefits. The location performs well to the proposed balanced strategy, and, due to its location in relation to Southend and the highway network, would avoid generating traffic on local networks for non local reasons. The location is unlikely to enable infrastructure improvements to King Edmund School, but is nevertheless selected for the aforementioned reasons."
"as it was not considered as sustainable a location as West Rochford. There are greater environmental constraints to the East of Rochford, including Natura 2000 and Ramsar sites. Development to the East of Rochford has the potential to be affected by noise from London Southend airport, given its relationship to the existing runway. Whilst a small quantum of development may be accommodated within this general location avoiding land subject to physical constraints, such an approach is less likely to deliver community benefits, and would necessitate the identification of additional land, diluting the concentration of development and thus reducing the sustainability benefits of focussing development on larger sites. Location 3 is also unlikely to aid the delivery of improvements to King Edmund School. Furthermore, it would generate traffic on local networks for non local reasons, i.e. traffic to Southend would be likely to be directed through the centre of Rochford, including through the Conservation Area."
"(1) Where an environmental assessment is required by any provision of Part 2 of these regulations, the responsible authority shall prepare, or secure the preparation of, an environmental report in accordance with paragraphs (2) and (3) of this regulation.
(2) The report shall identify, describe and evaluate the likely significant effects on the environment of –
(a) implementing the plan or programme; and
(b) reasonable alternatives taking into account the objectives and geographical scope of the plan or programme.
(3) The report shall include such information referred to in schedule 2 to these regulations as may be reasonably required, taking account of – [a number of matters are then set out in sub-paragraphs (a) to (d)]…."
"(1) Every draft plan or programme for which an Environmental Report has been prepared in accordance with Regulation 12 and its accompanying Environmental Report ('the relevant documents') shall be made available for the purposes of consultation in accordance with the following provisions of this Regulation."
(1) the Regulations are the relevant source of law in this country, since the Directive, unlike an EU Regulation, is not directly applicable;
(2) the Regulations should be interpreted so far as possible in a way which is compatible with the Directive; and
(3) if an interpretation of the Regulations is incompatible with the Directive and no other interpretation is possible, then, to the extent of any incompatibility, the claimant may rely on a provision of the Directive, since there will, to that extent, have been a failure correctly to transpose the Directive into domestic law: in those circumstances the Directive may have direct effect.
It is therefore appropriate now to turn to the material provisions of the Directive.
"The objective of this Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with this Directive an Environmental Assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment."
"The preparation of an Environmental Report, the carrying out of consultations, the taking into account of the Environmental Report and the results of the consultations in decision-making and the provision of information on the decision in accordance with articles 4 to 9."
"The Environmental Assessment referred to in article 3 shall be carried out in the preparation of a plan or programme and before its adoption or submission to legislative procedure."
"Where an Environmental Assessment is required under article 3(1), an Environmental Report shall be prepared in which the likely significant effects on the environment of implementing the plan or programme, and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme, are identified, described and evaluated. The information to be given for this purpose is referred to in Annex 1. Annex 1 sets out a number of matters, including at sub paragraph (h) an outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken….".
"(1) The draft plan or programme and the Environmental Report prepared in accordance with article 5 shall be made available to the authorities referred to in paragraph 3 of this article and the public.
(2) The authorities referred to in paragraph 3 and public referred to in paragraph 4 shall be given an early and effective opportunity within appropriate timeframes to express their opinion on the draft plan or programme and the accompanying Environmental Report before the adoption of the plan or programme or its submission to the legislative procedure. …"
"As a matter of good practice, the Environmental Assessment of plans and programmes should influence the way the plans and programmes themselves are drawn up. While a plan or programme is relatively fluid, it may be easier to discard elements which are likely to have undesirable environmental effects than it would be when the plan or programme has been completed. At that stage, an Environmental Assessment may be informative but is likely to be less influential. Article 4(1) places a clear obligation on authorities to carry out the assessment during the preparation of the plan or programme."
"The obligation to identify, describe and evaluate reasonable alternatives must be read in the context of the objective of the Directive which is to ensure that the effects of implementing plans and programmes are taken into account during their preparation and before their adoption."
"In requiring the likely significant environmental effects or reasonable alternatives to be identified, described and evaluated, the Directive makes no distinction between the assessment requirements for the drafted plan or programme and for the alternatives. The essential thing is that the likely significant effects of the plan or programme and the alternatives are identified, described and evaluated in a comparable way. The requirements in article 5(2) concerning the scope and level of detail for the information in the report apply to the assessment of alternatives as well. It is essential that the authority or Parliament responsible for the adoption of the plan or programme as well as the authorities and the public consulted, are presented with an accurate picture of what reasonable alternatives there are and why they are not considered to be the best option. The information referred to in Annex 1 should thus be provided for the alternatives chosen. …"
"This definition clearly states that consultation involved is an inseparable part of the assessment. Further, the results of the consultation have to be taken into account when the decision is being made. If either element is missing, there is, by definition, no Environmental Assessment in conformity with the Directive. This underlines the importance that is attached to consultation in the assessment."
The claimant's ground (1)
The claimant's ground (2)
"It is considered that west Rochford is a more suitable location given its proximity to the train station, town centre and its relationship with areas of significant employment growth potential at London Southend Airport and its environs. Traffic flows from the new development top the east of Rochford would be predominantly through the centre of the town centre resulting in significant congestion."
"… it seems to me that, although there is a case for examination of a preferred option in greater detail, the aim of the Directive, which may affect which alternatives it is reasonable to select, is more obviously met by, and it is best interpreted as requiring, an equal examination of the alternatives which it is reasonable to select for examination alongside whatever, even at the outset, may be the preferred option. It is part of the purpose of this process to test whether what may start out as preferred should still end up as preferred after a fair and public analysis of what the authority regards as reasonable alternatives. …" [Emphasis added]
The claimant's ground (3)
(1) the Addendum was produced by independent consultants who will have been well aware of the fact that (as the inspector herself pointed out before the Addendum was commissioned) it must not be undertaken as an exercise to justify a predetermined strategy;
(2) the claimant's assertion that Enfusion were simply asked to "verify" the conclusions already reached by Council Members is emphatically denied by Cllr Hudson (see his witness statement, para. 24);
(3) In any event, having considered the Addendum and the submissions made (by the claimant and others) in connection with it, the independent inspector concluded that there was "no compelling reason to question [its] integrity".
(4) Further, the inspector had specifically (and at the claimant's request) included within the "Matters and Issues" for consideration at the examination the question: "Are the broad locations identified for the supply of housing most appropriate when considered against all reasonable alternatives?" In that context, she considered whether the reasons advanced in the Addendum were sound and concluded that there was:
"no compelling evidence to dispute the conclusion of the SA that the chosen locations are the most sustainable."
"In June 2011, and following the judgement of the High Court in the case of Save Historic Newmarket Ltd v Forest Heath District Council, the Council published a draft Addendum to the Sustainability Appraisal which was subject to consultation between 13 June and 11 July 2011 and I have taken account of representations made in preparing my report" (para. 10).
"The SA is informed by a comprehensive scoping report and I find no reason to conclude that any significant effects have not been taken into account. The SA Addendum (July 2011) provides a more detailed appraisal of the alternative locations considered, and was subject to public consultation. I have taken into account criticisms that the Addendum was produced after the submission draft plan, but sustainability appraisal is an iterative process"
"Overall, there is no compelling reason to question the integrity of the SA as a whole, and no convincing evidence to dispute the conclusion of the SA that the chosen locations are the most sustainable, and therefore the CS is sound in relation to this issue"
"Having undertaken this review, it is our professional opinion that the SA/SEA of the Rochford Core Strategy (incorporating the Addendum reports of September 2010 and July 2011) is compliant with the SEA Directive and requirements and PPS 12 requirements for Sustainability Appraisal" (para.1.4).
(1) the 2009 SA/SEA had incorporated comments and representations received during public consultation on earlier iterations of the draft RCS and the sustainability appraisal undertaken throughout the plan-making process, since Issues and Options stage (para. 1.1);
(2) it "...provides a summary of the alternatives considered throughout the production of the plan setting out the reasons for selecting/rejecting those alternatives. It also includes consideration of more detailed housing locations..." (para. 1.3);
(3) the same method of appraisal using the SA framework of objectives and decision-aiding questions for sustainable development had been used in its production (para. 1.5);
(4) "A strategic approach was taken - appropriate to the Core Strategy level of plan-making and to minimise pre-empting the preparation of the Site Allocations DPD that will consider sites in more detail" (para. 1.7);
(5) it incorporates consideration of "...the approach to general locations within each settlement" (para. 1.7);
(6) it performs a comparative appraisal between locations and settlement areas:
- findings of "no significant effects identified" were recorded in the Addendum as to denote "...that the development of the location is unlikely to have a significant effect on the SA objective in question...";
- any "cumulative issues of significance" were considered in the Sustainability Appraisal Submission report (section 6).
(1) The plan process and the claimant's appeal were concerned with two separate things. The plan process was concerned with identifying a broad geographical area within which it might be possible to locate 650 houses. The claimant's appeal was concerned with an application on a specific site for planning permission for 326 houses. It is not surprising that the consideration of the Coombes Farm application was carried out at a greater level of detail than the identification of broad areas for development in the RCS. However, whether or not Coombe Farm was suitable revealed nothing about the suitability of the surrounding area. This is particularly relevant, given that the claimant's proposals would only address part of the overall need for Rochford.
(2) To the extent that it might have been relevant to consider the claimant's particular site, this submission confuses two different issues, namely:
- whether the impacts of developing the claimant's site (whether in terms of traffic, habitats, landscape or any other matter) were sufficiently harmful as to justify refusal of permission for the claimant's site if that site were considered in isolation;
- whether the impacts of developing the claimant's site (whether in terms of traffic, habitats, landscape or any other matter) would be more harmful/less advantageous than those which would arise if development were carried out to the west of Rochford instead.
The claimant's planning appeal was concerned with the former; the RCS process was concerned with the latter. It was for this reason that the 2008 draft of the RCS described west Rochford as being "more suitable" than the other Rochford locations. It did not suggest, nor did it need to, that there were no locations to the east of Rochford where residential development might be acceptable.
(3) In any event, one of the functions of the statutory process is to give members of the public the opportunity to draw what they perceive to be errors or omissions to the attention of the decision-maker. In the present case, if and so far as the claimant considered that the Addendum was wrong not to refer to the Statement of Common Ground and other material presented at the Coombes Farm planning appeal, it was open to it to draw the inspector's attention to this material in the EiP process. In fact, the claimant had already done this long before the Addendum was produced. This information was again drawn to the inspector's attention by a letter of 24 June 2011. Further detailed submissions were made on 8 July 2011. In the circumstances, there is no basis for the suggestion that the inspector was not properly informed of this matter.
The claimant's ground (4)
"We would urge you to suspend any decision to adopt the Core Strategy until such time was the Council has conducted a fully objective and transparent assessment of the effects of the broad housing locations and their consideration against all reasonable alternatives."
"the preparation of the environmental report, carrying out consultations, the taking into account of the environmental report and the results of the consultations in the decision making and the provision of information on the decision in accordance with Articles 4 to 9".
"The scheme of the Directive and the Regulations clearly envisages the parallel development of the Environmental report and the draft plan with the former impacting on the development of the latter throughout the periods before, during and after the public consultation. In the period before public consultation the developing Environmental Report will influence the developing plan and there will be engagement with the consultation body on the contents of the report. Where the latter becomes largely settled, even though as a draft plan, before the development of the former, then the fulfilment of the scheme of the Directive and the Regulations may be placed in jeopardy. The later public consultation on the Environmental Report and draft plan may not be capable of exerting the appropriate influence on the contents of the draft plan." [Emphasis added]
"Once again the Environmental Report and the draft plan operate together and the consultees consider each in the light of the other. This must occur at a stage that is sufficiently 'early' to avoid in effect a settled outcome having been reached and to enable the responses to be capable of influencing the final form. Further this must also be 'effective' in that it does in the event actually influence the final form. While the scheme of the Directive and the Regulations does not demand simultaneous publication of the draft plan and the Environmental Report it clearly contemplates the opportunity for concurrent consultation on both documents." [Emphasis added]
"When the development of the draft plan had reached an advanced stage before the Environmental Report had been commenced there was no opportunity for the latter to inform the development of the former. This was not in accordance with the scheme of Articles 4 and 6 of the Directive and the Regulations." [Emphasis added]
"The challenge is brought on two grounds. First it is said that there was a failure to comply with the relevant EU Directive and the Regulations made to implement it that the Strategic Environmental Assessment (SEA) did not contain all that it should have contained. This if established would render the policy made in breach unlawful whether or not the omission could in fact have made any difference. That, as is common ground, is made clear by the decision of the House of Lords in Berkeley…. Although Berkeley concerned an EIA, the same principle applies to a SEA. To uphold a planning permission granted contrary to the provisions of that Directive would be inconsistent with the Courts obligations under European Law to enforce Community Rights. The same would apply to policies in a plan."
"In my judgement, Mr Elvin is correct to submit that the final report accompanying the proposed Core Strategy to be put to the inspector was flawed. It was not possible for the consultees to know from it what were the reasons for rejecting any alternatives to the urban development where it was proposed or to know why the increase in the residential development made no difference. The previous reports did not properly give the necessary explanations and reasons and in any event were not sufficiently summarised nor were the relevant passages identified in the final report. There was thus a failure to comply with the requirements of the Directive …" [Emphasis added]
"unrealistic counsel of perfection to expect that an applicant's environmental statement will always contain 'the full information' about the environmental impact of a project. The Regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting 'environmental information' provides the local planning authority with as full a picture as possible. There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations … but they are likely to be few and far between."
The claimant's ground (5)
"In order to enable this additional work to be appropriately fed into the decision-making process, we respectfully request that the issuing of the Inspector's report be postponed. We appreciate that additional work on the SA will necessitate a delay in the examination process to allow for the additional work to be drafted, consulted upon, and the results fed into the plan-making process as appropriate. Furthermore, we are mindful that the Inspector may wish to hold further hearing sessions to consider the results of the additional SA work." [Emphasis added]
"We are mindful that the public consultation period set out in the scenario 2 timetable represents an opportunity to consult not only on any changes that may be required as a result of the SA review, but also on adjustments to extend the Plan period to 15 years."