ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Collins
Strand, London, WC2A 2LL
B e f o r e :
(Vice-President of the Court of Appeal (Civil Division))
LORD JUSTICE RICHARDS
LADY JUSTICE SHARP
| The Queen (on the application of Larkfleet Homes Limited)
|- and -
|Rutland County Council
- and -
Uppingham Town Council
- and -
Secretary of State for Communities and Local Government
Alan Evans (instructed by Head of Legal Services, Peterborough City Council) for the Respondent
Nathalie Lieven QC (instructed by the Government Legal Department) for the Intervener
The Interested Party did not appear and was not represented at the hearing of the appeal
Hearing date : 4 June 2015
Crown Copyright ©
Lord Justice Richards :
"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."
Ground (1): whether a neighbourhood development plan may contain site allocation policies
The legislative provisions
i) Part 2 is headed "Local development". It includes a group of sections under the sub-heading "Documents", one of which is section 17, relating to local development documents. It also includes, in section 37, provisions concerning the interpretation of terms used in Part 2.
ii) Part 3 is headed "Development". It starts, in section 38, with a set of provisions relating generally to the development plan. That is followed by sections 38A to 38C, relating specifically to neighbourhood development plans.
"38. Development plan
(1) A reference to the development plan in any enactment mentioned in subsection (7) [which includes the 2004 Act and other planning Acts] must be construed in accordance with subsections (2) to (5).
(3) For the purposes of any [area other than Greater London] in England the development plan is –
(a) the regional strategy for the region in which the area is situated (if there is a regional strategy for that region), and
(b) the development plan documents (taken as a whole) which have been adopted or approved in relation to that area, and
(c) the neighbourhood development plans which have been made in relation to that area.
(6) If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.
(9) Development plan document must be construed in accordance with section 37(3).
(10) Neighbourhood development plan must be construed in accordance with section 38A."
"17. Local development documents
(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
(a) which descriptions of local development documents are development plan 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".
"5. Local development documents
(1) For the purposes of section 17(7)(za) of the Act the documents which are to be prepared as local development documents are –
(a) any document prepared by a local planning authority individually or in co-operation with one or more other local planning authorities, which contains statements regarding one or more of the following –
(i) the development and use of land which the local planning authority wish to encourage during any specified period;
(ii) the allocation of sites for a particular type of development or use;
(iii) any environmental, social, design and economic objectives which are relevant to the attainment of the development and use of land mentioned in paragraph (i); and
(iv) development management and site allocation policies, which are intended to guide the determination of applications for planning permissions.
(2) For the purposes of section 17(7)(za) of the Act the documents which, if prepared, are to be prepared as local development documents are –
(a) any document which –
(i) relates only to part of the area of the local planning authority;
(ii) identifies that area as an area of significant change or special conservation; and
(iii) contains the local planning authority's policies in relation to the area; and
(b) any other document which includes a site allocation policy."
By regulation 2(1), "site allocation policy" means a policy which allocates a site for a particular use or development.
"38A. Meaning of 'neighbourhood development plan'
(1) Any qualifying body is entitled to initiate a process for the purpose of requiring a local planning authority in England to make a neighbourhood development plan.
(2) A 'neighbourhood development plan' is a plan which sets out policies (however expressed) in relation to the development and use of land in the whole or any part of a particular neighbourhood area specified in the plan.
(3) Schedule 4B to the principal Act [the Town and Country Planning Act 1990], which makes provision about the process for the making of neighbourhood development orders, including –
(a) provision for independent examination of orders proposed by qualifying bodies, and
(b) provision for the holding of referendums on orders proposed by those bodies,
is to apply in relation to neighbourhood development plans (subject to the modifications set out in section 38C(5) of this Act).
(4) A local planning authority to whom a proposal for the making of a neighbourhood development plan has been made –
(a) must make a neighbourhood development plan to which the proposal relates if in each applicable referendum under that Schedule (as so applied) more than half of those voting have voted in favour of the plan, and
(b) if paragraph (a) applies, must make the plan as soon as reasonably practicable after the referendum is held.
(12) For the purposes of this section –
'qualifying body' means a parish council, or an organisation or body designated as a neighbourhood forum, authorised for the purposes of a neighbourhood development plan to act in relation to a neighbourhood area as a result of section 61F of the principal Act, as applied by section 38C of this Act.
38B. Provision that may be made by neighbourhood development plans
(1) A neighbourhood development plan –
(a) must specify the period for which it is to have effect,
(b) may not include provision about development that is excluded development, and
(c) may not relate to more than one neighbourhood area.
(2) Only one neighbourhood development plan may be made for each neighbourhood area.
(3) If to any extent a policy set out in a neighbourhood development plan conflicts with any other statement or information in the plan, the conflict must be resolved in favour of the policy.
(4) Regulations made by the Secretary of State may make provision –
(a) restricting the provision that may be included in neighbourhood development plans about the use of land,
(b) requiring neighbourhood development plans to include such matters as are prescribed in the regulations, and
(c) prescribing the form of neighbourhood development plans.
(6) Section 61K of the principal Act (meaning of 'excluded development') is to apply for the purposes of subsection (1)(b)."
The judgment below
"21. In the light of all this material, I must now seek to construe s.17(7)(za) and regulation 5 of the 2012 Regulations. Both counsel submitted that s.17(7(za) dealt with documents which had to be prepared and those which could be prepared as local development documents. I can see no other sensible construction. Regulation 5(1) thus deals with documents which need to be prepared as local development documents. These include in 5(a)(ii) allocation of sites for a particular type of development or use. There is an obligation to deal with strategic considerations in LDDs [local development documents] and this as it seems to me is what 5(a)(ii) is concerned with. It does not mean that precise sites within the scope of the required policy approach need to be identified so that local communities have no say in that. The UNP is limited in this case to the sites being to the west or north west, to a provision of about 16 per annum to 2026 and to 25% being if possible on previously developed sites.
22. However, it is regulation 5(2)(b) which creates, it is submitted, the problem since it is not limited to documents prepared by a local planning authority. Section 17 is concerned with local development documents and what they must contain so that even without the specific reference in regulation 5(1) the regulation is aimed at documents which are to be or may be prepared by local planning authorities. However, there is in my view no reason to construe regulation 5(2)(b) in wider terms than 5(1)(a)(ii). The language is not the same, but a 'site allocation policy' is wider than an identification of a particular site within a policy. The regulation is badly drafted, but it would be surprising, indeed contrary to what a neighbourhood plan is supposed to achieve, if allocation of precise sites were not able to be dealt with in a neighbourhood plan. Accordingly, I have no doubt that Mr Banner's submission on his first ground must be rejected."
Ground 2: lawfulness of the SEA screening decision
"An environmental assessment need not be carried out –
(a) for a plan … of the description set out in paragraph (2) or (3) 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."
"29. It is, I think, not surprising that possible 'significant' negative effects should have been at the forefront of the author's mind, particularly as he was aware of the previous reports and findings. As I have said, it is unfortunate that he has given the opportunity in the way he has expressed himself to the contention that he failed to consider whether there were any positive significant effects. But I am not persuaded that on an overall reading and knowledge of the author's clear recognition of what the legislation required of him and his familiarity with the previous reports on the Core Strategy and the SAPDPD he did not, however badly he expressed himself, fail to consider positive when he concluded that there were no significant effects."
"4.2 … The Core Strategy was subject to a full Sustainability Appraisal which included a SEA assessment. This ensured that there were no likely significant effects which would be produced from the implementation of the Core Strategy and if so ensured mitigation measures were in place. An assessment of the UNP policies and their conformity to the adopted Core Strategy has been undertaken and can be viewed in Appendix 1. This confirms that there is general conformity between the Core Strategy DPD and the UNP and there are no significant changes introduced by the UNP. It is therefore concluded that the implementation of the UNP would not result in any likely significant effects upon the environment.
4.3 … [The Site Allocations and Policies DPD] has been subject to a Sustainability Appraisal which included a SEA assessment. This ensured that there were no likely significant effects which would be produced from the implementation of the Site Allocations and Policies DPD and if so ensured mitigation measures were in place. An assessment of the UNP policies and their conformity to the emerging Site Allocations and Policies DPD (submission document) (April 2013) has been undertaken and can be viewed in Appendix 1. This confirms that there are no significant changes introduced by the UNP. Again, it is concluded that the implementation of the UNP would not result in any likely significant effects upon the environment." (Emphasis in the original.)
"This policy is in conformity with local plan policies encouraging the improvement and retention of a valuable community facility – Tods Piece. The policy supports the development of additional facilities to support Tod's Piece, however it is not identified that this will create a significant effects [sic]."
That passage is plainly considering a positive effect of the proposal, concluding however that the effect is not significant. Looked at overall, the exercise undertaken in Appendix 1 appears to me to give strong support to the view that the author had regard to positive as well negative effects.
"The UNP allocates sites for residential development. The sites allocated are in conformity with the Core Strategy policies as they are located to the west/north west of Uppingham (as identified in Core strategy para 2.17) and the total number of potential dwellings does not exceed the 250 figure stated in policy CS9. The sites were originally assessed through the Sustainability Appraisal/Site Appraisals for the Site Allocations and Policies DPD at the preferred options stage. The evidence base work to support the Site Allocations and Policies DPD and the site appraisals have been used to inform the assessment and allocation of sites in the UNP. The site allocated to the south of Leicester Road was not a preferred option in the Site Allocations and Policies DPD, due to its location outside of the settlement limits and several physical constraints to sustainable development identified. However the site has been reassessed by the Uppingham Town Council following its inclusion within the settlement limits and found that the site scored green on Topography, Biodiversity, Cultural Heritage, Townscape, Public Open Space, Water Conservation, Contamination, Proximity to services, Access to Public Transport, Availability, Transport and Available Infrastructure. It was concluded as an appropriate site for allocation and no significant negative effects were identified as a result of its allocation. The other sites allocated for development in the UNP were found to be suitable and no significant negative effects were identified when assessed through the Site Allocations and Policies DPD preferred options Sustainability Appraisal and Site Appraisals. Following these findings it is therefore concluded that the implementation of the UNP would not result in any likely significant effects upon the environment". (Emphasis in the original.)
4.7 As a result of the assessment in Table 1, it is unlikely there will be any significant environmental effects arising from the UNP. The UNP is in conformity with the Core Strategy (2011) and the proposed Site Allocations and Policies DPD, which have both had a full Sustainability Appraisal, incorporating a SEA, finding no negative significant effects. The assessment of the UNP policies identifies no significant negative effects and as such, the UNP does not require a full SEA to be undertaken.
Conclusions and recommendations of the Screening Assessments
6.1 A screening assessment to determine the need for a SEA in line with regulations and guidance was undertaken and can be found in chapter 4 of this report. The assessment finds no negative significant effects will occur as a result of the UNP. The assessment also finds many of the policies are in conformity with the local plan policies which have a full SA/SEA which identified no significant effects will occur as a result of the implementation of policies.
6.2 From the findings of the screening assessment it is recommended that a full SEA does not need to be undertaken for the UNP."
Lady Justice Sharp :
Lord Justice Moore-Bick :