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JS BLOOR LIMITED v. AND [2001] EWHC Admin 966 (23rd November, 2001)

		Neutral Citation Number: [2001] EWHC Admin 966
		Case No: CO/780/2001

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

CO/823/2001
Royal Courts of Justice
Strand, London, WC2A 2LL

23rd November, 2001

B e f o r e :

THE HONOURABLE MR JUSTICE OUSELEY
JS BLOOR LIMITED
TERENCE MELVILLE KING
and
SWINDON BOROUGH COUNCIL
WILTSHIRE COUNTY COUNCIL
SECRETARY OF STATE FOR THE ENVIRONMENT,
BRYANT HOMES
____________________

JS BLOOR LIMITED
First Claimant

TERENCE MELVILLE KING Second Claimant

and

SWINDON BOROUGH COUNCIL
1st Defendant

WILTSHIRE COUNTY COUNCIL 2nd Defendant

SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND THE REGIONS
3rd Defendant

BRYANT HOMES Interested Party

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

David Holgate QC and Richard Harwood (instructed by CMS Cameron McKenna for the First Claimant)
Stephen Morgan (instructed by Richard Buxton & Co. for the Second Claimant)
- and -
Richard Drabble QC and Alice Robinson (instructed by the Solicitors to Swindon Borough Council and Wiltshire County Council for the 1st and 2nd Defendants)
Timothy Mould (instructed by the Treasury Solicitor for the Secretary of State for Transport, Local Govenment and the Regions, 3rd Defendant)
Christopher Lockhart-Mummery QC and Daniel Kolinsky (instructed by Eversheds for Bryant Homes, interested Party)
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Mr Justice Ouseley:

INTRODUCTION

This case concerns a policy, DP10, in the adopted Wiltshire Structure Plan 2011 providing for the development of land in the south of Swindon for a major new housing development, the Southern Development Area, to accommodate at least 3800 dwellings. J.S. Bloor Limited, the first Claimant, has options over some 200 hectares of land at Kingsdown on the north eastern edge of Swindon, the larger part of an area of some 350 hectares which, with a number of landowners, it wishes to develop for some 3500 houses as an urban extension to Swindon. Mr. King, who became a party to Bloors’ application for costs reasons instead of pursuing his own, is a resident of the rural area to the south of Swindon, and chairman of the Front Garden Action Group, “FRAG”. The “Front Garden” is the name in Swindon by which the Southern Development Area is more pleasingly known. He supports Bloors’ case in so far as it seeks that major residential development should not take place to the south of Swindon.

Swindon Borough Council is a Unitary Authority, following local government reorganisation. It has both structure and local plan powers for its area. It has a very substantial property interest in the Front Garden, which it inherited from Wiltshire County Council on local government reorganisation. Wiltshire County Council is the structure plan authority for the rest of Wiltshire. Together, as requested by the Secretary of State on reorganisation, they have acted as Joint Structure Plan Authorities to produce and adopt the Wiltshire Structure Plan. Swindon Borough Council will subsequently produce a Local Plan for its area which will have to be in general conformity with the Structure Plan.

Bryant Homes Ltd. which appeared in support of the two Councils is a prospective developer of the Southern Development Area.

The Secretary of State for the Environment, Transport and the Regions also appeared because it was thought that the Claimant’s case involved a challenge to the compatibility of the Structure Plan process with the Human Rights Act 1998. In the end, no such case was advanced, although it was contended that on the facts, Article 6 ECHR was engaged and breached.

The challenges are brought pursuant to Section 287 of the Town and Country Planning Act 1990. In summary it is alleged that the inclusion of Policy DP10 in the Structure Plan was outside the powers of the Act because it was not a “general” policy; it was too “detailed” a policy, requiring too detailed a level of consideration for inclusion in the Structure Plan; it should have been dealt with through the later Local Plan process. Alternatively, its inclusion in the Structure Plan was procedurally in error because the Councils failed to consider whether it would be appropriate to use the Local Plan process with its different and more intense level of independent scrutiny and objector participation, or to adjust the Structure Plan processes to meet the needs of the situation. A variety of criticisms were made of the adequacy of the Councils’ reasons for their decisions in relation to issues such as urban housing capacity, the capacity of the Southern Development Area, and constraints there such as the floodplain and a proposed relief road.

Policy DP10 as adopted reads:

“At Swindon, the Northern Development Area should be the main location for development of new housing, employment land, associated shopping and services. This should be supplemented by use of suitable sites within the existing urban area, in particular land and buildings that have been previously developed and by development of land in the Southern Development Area identified to accommodate at least 3800 dwellings, being the balance of growth required within the plan period.”

It is the reference to the Southern Development Area which is controversial. The explanatory text describes how the requirement of at least 3800 dwellings was arrived at. The starting point was the requirement of 23000 dwellings over the Plan period, from which was deducted completions (6900), the further scope in the Northern Development Area (8800), development of previously used land (2700) and unidentified non-strategic sites of over 10 dwellings (800). It comments in paragraph 4.66:

“This area is considered to be the most sustainable option for large scale greenfield development of the town to 2011, as was demonstrated through the Swindon Development Appraisal Study. Whilst it is important to give particular attention to the release of brownfield land for housing development as a priority, it is considered that the phased release of the Southern Development Area is not necessary, as there should be no delay in bringing forward the area if the Structure Plan requirements are to be met.”

Other uses e.g. employment and community facilities, and environmental considerations in relation to the development of the SDA are referred to in general terms.

The factual background

It is unfortunately necessary to set out at some length the history of the Structure Plan in relation to Swindon in order to set the competing considerations in context.

In 1981 the North East Wiltshire Structure Plan had contained a policy which gave directional guidance as to the location of major housing development in Swindon. H4A stated that the new housing should adjoin “the western edge of the Swindon Urban Area”. This was a policy or proposal inserted by the Secretary of State for the Environment who in those days was responsible for approving the Structure Plan. (The 1971 Act contained a broadly similar distinction between “general” and “detailed” policies to that found in the 1990 Act). In his approval letter, he said at paragraphs 4.15 and 4.16:

“It was contended that the locational guidance which it provided was too detailed for a structure plan ... He accepts that the general location of major new growth is a matter for the structure plan to consider and he is satisfied that participants in the examination in public were afforded an adequate opportunity to express such views on the issue of the broad location of new growth at Swindon as they considered relevant and necessary.”

Indeed, as a footnote, although in Edwin H Bradley & Son Ltd. v Secretary of State for the Environment 1983 JPL 43, Policy H4A, which had been accepted by the Councils on the recommendation of the Panel (chaired by a junior planning barrister, Michael Howard), was challenged in the High Court, it was not suggested by Mr. Spence QC in the course of that challenge that H4A was unlawful for the reasons now advanced by Mr. Holgate QC for Bloors. Though of some historical interest, that case cannot be an authority by silence even from Glidewell J and Mr Spence QC on the point now raised.

Policy H3 of the Alteration No. 1 in 1990 referred to housing in the Northern and Western Development Areas, which were shown diagrammatically on the Key Diagram, and those were approved by the Secretary of State.

I note in passing that this Alteration introduced the concept of a rural buffer to the West, North, South and South-East of Swindon to protect communities from coalescence and to preserve the open countryside from major development “until the future long term scale and direction of growth of Swindon can be considered as part of a subsequent review of the Structure Plan.”

In the 1993 Alterations No. 2, policy H1 dealt with housing in Thamesdown, as Swindon Borough’s area was once beguilingly known, thus: “Thamesdown Borough Council, about 15100 (of which about 8,500 dwellings to be in the Swindon Northern Development Area)”. There was again debate as to whether that policy was intruding on the function of the Local Plan. The Secretary of State’s approval letter records the Panel’s conclusion that, in general, housing figures quantified below the level of a District:

“impinged on the function of local plans by limiting the scope for local choice and restricting the flexibility of the system. The Panel considered the housing proposal at the Northern Development Area of Swindon and the employment land allocation at South Marston to be of strategic importance.”

The Secretary of State agreed, saying:

“7.3. The Secretary of State notes the County Council’s view that the deletion of sub-district figures would remove appropriate strategic guidance, hinder the implementation of relevant policies, and fail to ensure a proper balance and distribution of development. The Secretary of State does not accept that these reservations are well-founded. The limited circumstances in which quantified housing or employment provisions below district level may be appropriate in structure plans are set out in Planning Policy Guidance Note 12 (PPG12). He is not persuaded that such circumstances apply in Wiltshire, other than in the two locations identified by the Panel. He considers that district-wide local plans are generally the most satisfactory means by which to determine the precise quantified distribution of development within a district. The preparation of local plans allows for detailed site appraisals and for the exercise of local choice.”

Accordingly, this level of detail in a Structure Plan was seen as exceptional, and appropriate only because of the “strategic” importance of the allocation.

The 1996 Deposit Draft of the Wiltshire Structure Plan 2011 provided in Policy DP10 that major development at Swindon after 2001 should not take place in the AONB or the Swindon Rural Buffer. The Rural Buffer was extensive but did not cover the north-east section of Swindon’s more rural outskirts where Bloors now propose housing. The Deposit Draft stated that further major provision totalling 6000 dwellings would be required and that “Further scope should therefore be identified in the review of the Local Plan,” and should not take place in the Rural Buffer or AONB. The extent of the Rural Buffer was largely unchanged: the Front Garden was in it, Kingsdown and the North-East were not.

It is also necessary to set out the gist of certain representations made to the first EIP held into the Deposit Draft because the Councils and Bryants submitted that Bloors’ dissatisfaction with the processes stemmed from disappointment at the outcome rather than from any intrinsic problem in the process: so long as the Structure Plan process looked as though it would favour development in the north-east it was, submitted Bloors’ opponents, a process which Bloors commended.

Dreweatt-Neate, chartered surveyors for Bloors, suggested in their statement to the Panel that, by way of providing the appropriate strategic framework for Local Plans, the Structure Plan should indicate the “general location of individual developments likely to have a significant effect on the Plan area”. They recommended that the “arc” between the eastern edge of the NDA and the existing Marston Industrial Estate should be identified in the Structure Plan as a major growth area. However, any guidance thus expressed in practice would guide the Local Plan not just to a broad north-east sector but to a quite circumscribed part of the north-east, around Stanton Fitzwarren. So Mr. Holgate pointed out that in their earlier representations Dreweatt-Neate had referred to “land to the east of the A419” as that which should be specifically identified. I detected a certain sensitivity on this point.

The conclusions of the Panel at the first EIP on this issue are important. The Panel commented that there was very little positive guidance given in the Structure Plan on the location and direction of future growth in the area around Swindon. There was extensive negative guidance in the form of policies which identified areas where development was not to take place, for example the rural buffer. The Panel pointed to the potential danger that because of the extent of the rural buffer, the buffer policy might identify areas for development by default. In particular the Panel was conscious that one of the side effects of the buffer policy might be to close off development options on all but the eastern side of Swindon. The Panel took very seriously the concerns of Thamesdown Borough Council that the “present imbalance towards negative guidance may lead to planning by default”. The Panel pointed out that the rural buffer was intended to provide protection until a review of the plan rather than permanent protection.

Local government reorganisation had created a major problem for the Panel such that they considered that they were “not in a proper position to specify where strategic scale development should take place based on any full assessment of the future long term direction of growth of Swindon”. Although a number of developers and landowners, including the North East Swindon Consortium who own much of the land in which Bloors is interested, submitted documentation to the Panel in support of individual projects, the Panel considered that on the basis of the information currently available “no individual scheme has such clear merits as to commend itself above the others. We consider that in the absence of a wide ranging comparative appraisal of potential options, we should not express a firm preference either in favour or against one or other of these schemes”. The Panel considered how the issue of directional guidance as to the location of strategic housing development should be resolved.

“4.40. The issue of directional guidance is one that has both a strategic and a local dimension. Because of its scale it is a strategic decision but, since it impacts on a particular locality, it has particular importance to groups and organisations that would be directly affected. ...

4.41. In their original submissions the Borough Council had taken the view that the determination of appropriate areas for future development should be resolved through the Local Plan Review. At the EiP as an alternative the Borough Council suggested that the matter might be referred back to the Structure Plan Authorities for further consideration prior to formal deposit of proposed modifications to this draft structure plan”.

The panel then commented as follows:

“4.42. We consider that the question of the direction of growth of Swindon is one that should be addressed in a Development Plan in which the new Swindon Unitary Authority has a leading role. We regard this as a matter of considerable urgency. While it could be dealt with in the context of a review of the Local Plan, it is a matter of strategic significance and one that in the context of a plan led system ought to be resolved at a relative early date. This is in part because of the lead time required before a substantial new development area will start to come onstream and in part because from the representations made at the EiP it is clear that various groups of landowners and developers are coming forward with proposals and, in our view, the absence of clear directional guidance add impetus to this activity.

4.43. Relying on a future Local Plan Review could result in delays that would make it impossible to bring forward a substantial area of housing land for development within the life of this structure plan. If the quantity of material submitted to the EiP by some of the participants is anything to go by, a Local Plan would be extremely protracted and extremely wasteful of time and effort, especially on the part of competing private interests.

4.44. Some local interests may not regard such consequences to be a matter of concern particularly if there were no great expenditure of public resources. Delayed housing provision might also be seen as beneficial by those who consider that Swindon is suffering from excessive rates of growth. However it must be remembered that if there are delays in bringing forward land for development through the Development Plan process, the pressures to allow the release of sites outside this process will intensify. It is readily conceivable that one or more of the interested parties may seek to short circuit the planning process by mounting a bid to secure planning permission in advance of a Local Plan Review. For these reasons and because of the importance that we attach to securing additional housing within the Plan period we consider that the determination of strategic directional guidance should not be left to the review of the Local Plan. ”

Accordingly the Panel recommended that the two structure planning authorities, which now included Swindon Borough Council where previously Wiltshire County Council had been the sole structure plan authority, should take advantage of that new shared responsibility because it provided:

“an appropriate context for bringing forward positive guidance on the directional growth of Swindon. A comparative appraisal of areas with potential for expansion should be put in hand as a matter of urgency with the aim of incorporating its results in a modification to the Structure Plan. Policy DP 10 would then be modified to provide sufficiently clear directional guidance to form the basis for more detailed Local Plan proposals”.

The Panel commented further on the rural buffer and accepted the criticism that by default the Swindon rural buffer gave a directional lead, favouring development somewhere east of the A419, but as an unintended consequence of the rural buffer concept. The Panel commented that although the comparative appraisal of potential development options might lead to the selection of a site east of the A419 it considered that such an important strategic issue should not be left to emerge by default. It was of course to some extent that default position upon which Bloors had relied in seeking a more positive form of directional guidance in the Structure Plan than that contained in Deposit Draft Policy DP 10 and in urging that the direction in which development should be guided was to the North East.

In summary the Panel said that the Plan’s guidance for major housing development was inadequate.

“It relies unduly on a negative policy that applies to a widely drawn area. There is insufficient positive guidance on the direction of growth for new housing on the periphery of Swindon. More positive guidance is needed to resolve uncertainty and so that land for development can be brought forward sufficiently early to achieve the new housing that we consider will be needed over the Plan period. We conclude ... that a suitably formulated Policy DP 10 will help in the achievement of overall numerical and distributional housing targets that are of strategic significance. It is in our view essential to the achievement of the overall strategy of the structure plan that Policy DP 10 be revised to give firm guidance on the future direction on growth at Swindon”.

“4.54. We consider that Local Government Reorganisation in Wiltshire and the proposal for joint Structure Planning has created an opportunity for the introduction of positive strategic guidance through a modification Policy DP 10. ... responsibility for bringing forward positive proposals for the direction of the future growth of Swindon should be directed towards the new Swindon Borough Council, with strategic directional guidance to be provided in the modified Structure Plan such that individual land allocations can be subsequently identified by Local Plan Reviews.”

In October 1997 the two Councils accepted the recommendation of the Panel that a full comparative appraisal be undertaken jointly; and Swindon Borough Council also wanted to re-examine the total County housing figures and the proportion allocated to its area on the Panel recommendations.

They recognised the force in the Panel’s points as to why the issue of the location where major development should take place, should not be left to the Local Plan Review: delay to the plan process prompting pre-emptive planning applications. It was also agreed that the appraisal exercise should not be confined to Swindon Borough Council’s area but that equal consideration should be given to the adjoining area of North Wiltshire District which would involve Wiltshire County Council as Structure Plan Authority for that area. A Joint Working Party approved the appraisal process: the “Swindon area” to be covered was the Swindon Borough Council area plus the nearby Wootton Bassett sector of North Wiltshire District. It was to extend beyond an examination of current developer’s schemes and was to include public consultation. It was recognised that the appraisal would have to be conducted at a detailed level. Mr. Holgate pointed out that the Chief Planning Officers’ Joint Report to the JWP stated:

“5.11. Indeed the important point to note is that the appraisal process that has been developed is capable of continuing beyond the needs of the Structure Plan to facilitate the Local Plan review process. In order to be confident in identifying the direction(s) in which the expansion of Swindon should take place it will be necessary for the appraisal process to examine potential development areas in a detail more akin to a Local Plan review.”

The process undertaken is set out in detail in a number of documents which I can summarise from the witness statement of Ms. Jewell, a Principal Planner with the Borough Council.

Miss Jewel describes the process as taking the form of a detailed sustainability appraisal including environmental assessment. The first stage was an initial assessment undertaken in order to identify and compare potential development locations in order to narrow down the area for more detailed consideration; this was done by the use of broad zones based on sustainability principles and environmental criteria, the outcome of which indicated that a strategy of urban concentration would be the most appropriate for Swindon.

The second stage involved a “more rigorous assessment of the periphery of the town ... to enable a more detailed comparative assessment to be carried out”; the assessment was looking at the potential for development rather than the need to find a required number of dwellings. The periphery of Swindon was divided into ten broadly homogenous areas which were tested against a “strategic sustainability matrix”. From this process five options were identified as worthy of further testing: the Front Garden, Kingsdown and Lydiard Millicent, and two more radical long term solutions, “South of Wootton Bassett”, and “East of the A419”, an area which lay to the south and in part to the east of the Kingsdown area.

There was an extensive public consultation exercise in relation to these five options, which was then used to produce the third stage of assessment. The culmination of stage three was a report to the members of both Councils in December 1998, to which was appended a Technical Supplement detailing the process and methodology employed, considerations and conclusions on the appropriate level and distribution of housing throughout the County, an assessment of dwelling potential through the recycling of land and buildings, a report on public consultation, a report on the rural buffer study and area profiles of each of the five locations referred to.

Mr. Holgate referred to the statement of public consultation in which at paragraph 4.4.23 a Mr. David Potter on behalf of the Borough is recorded as saying that the fact that the Councils had to work within existing legislative structures and procedures “would not prevent the Councils from taking opportunities to “blur boundaries” between the Structure and Local Plans where this would benefit public debate and involvement”. I do not attribute anything sinister to that remark because it was recognised as indeed would obviously be the case, that a study carried out at this level of detail would be relevant to both the Structure and Local Plan processes. It would be artificial in such a study to define precisely the level of detail at which the approach would be fit exclusively for one level of plan rather than another.

The public consultation responses included a lengthy response from the Front Garden Action Group raising a number of points concerning the constraints on development to which the Front Garden was subject, and the previous Council policy of protecting the area from development because of its role as a green setting for Swindon.

Mr. Holgate pointed out that the area profile of Kingsdown recorded that the public consultation option for that area suggested a development potential of between 4,000 - 8,000 homes, that the assessment of the area had been carried out within the context of those figures and its suitability for development had been tested against figures within that range. This was important because Bloors were proposing no more than 3,500 houses in that area. This was said to be important in terms of agricultural land quality because the area examined was therefore larger than that which Bloors contemplated for development. The area profile referred to Kingsdown as containing some of the highest grade agricultural land of all the development areas and the highest proportion of high grade land to developable area. This led to MAFF confirming that the land should only be developed if there were an overriding need for development that could not be met on land of lower quality. The area profile concluded in paragraph 5.3.42 by saying:

“whilst the area would initially appear to be well related to the urban area its relative isolation would not lead to easy integration with the town. On balance it is felt that the potential benefits do not outweigh the potential loss of high grade agricultural land and impacts on other locally important environmental assets. This area would not therefore provide the best option for future strategic scale development”.

By contrast it was concluded in paragraph 5.2.42 that “on balance the Front Garden provides the best potential to meet the sustainable development principles.” Various constraints including the flood plain were referred to. Development of the Front Garden would have an impact on the landscape setting of the town. “This could however be minimised by sensitive development of the eastern part of the area and protection of the escarpment. Taking into account these factors it is considered that the area could accommodate 4,000 - 5,000 dwellings”.

In the overall conclusions to the study, Wootton Bassett and the area east of the A419 were considered to be unsuitable for major development at this stage although their capacity to accommodate lesser growth to 2011 was considered. However, it was still concluded that Wootton Bassett failed to meet any of the sustainability criteria and that it had limited potential for short term growth within the preferred urban concentration strategy. In paragraph 7.2.4 it was stated:

“the Kingsdown area has the most significant environmental features of all the areas under consideration. The assessment considered whether the area had any overriding benefits which might outweigh these environmental factors whilst the area does appear to meet the overall strategy of urban concentration there are considerable practical problems with integrating it into the town due to its physical separation. The assessment was therefore concluded that this area is not appropriate for strategic development at this point in time.”

The long term potential of the eastern area south of Kingsdown was considered but it was not thought appropriate for smaller scale development. The conclusion overall was that:

“The assessment has shown that of all locations the Front Garden performs the best against the greatest number of sustainability criteria. It is the location which is most likely to reduce the need to travel, encourage alternatives and provide easy access to jobs and facilities. In addition it is capable of making relatively efficient use of infrastructure for example water supply, sewerage and other community services,” paragraph 7.2.8.

The constraining environmental factors were recognised but it was still concluded that the area could accommodate 4,000 - 5,000 homes. Whilst it was recognised that the area was valued by some as the undeveloped setting to Swindon and that development would need to be sensitive to that issue, the landscape factor was not seen as sufficiently important to outweigh the wider sustainability benefits of this area. It was concluded that the Front Garden should be identified in the Modifications Policy DP 10 as the future direction of growth of Swindon to 2011.

At the meetings of the relevant Committees in December 1998, Officers also presented a report containing recommended proposed Modifications to the Deposit Draft Structure Plan, which reflected the outcome of the study: following substantial completion of the Northern Development Area, development of land to the South of Swindon should take place. The scale of the additional housing requirement for Swindon had been re-examined and a requirement for about 4,000 - 5,000 dwellings from this new Development Area was recognised. Although this was less than the 8,500 dwellings recommended by the EiP panel, that recommendation of 8,500 had been made in the context of the Panel’s recommendation that the total Swindon Borough housing requirement of 23,000 in the Deposit Plan be raised to 25,000 but which the Officers recommended be reduced to 22,000 in these proposed Modifications.

The next stage was that the proposed Modifications themselves were put on Deposit for the purposes of objection and representations. Dreweatt-Neate on behalf of Bloors objected to the proposed Modifications on the grounds that the technical justification for the reduction in the level of housing provision had serious weaknesses. Whilst welcoming the acceptance of the need for positive locational guidance, they commented that the guidance was inadequate because it failed to accommodate the necessary level of housing provision, over estimated the capacity of the Front Garden and brownfield sites and failed to acknowledge and support the development potential of Kingsdown. In their criticisms of the Southern Development Area, Dreweatt- Neate recognised that whilst the area might have some potential “(perhaps for the development of up to 1,500 dwellings)” the scale of development implied by the proposed Modification would be well beyond the area’s environmental capacity. They also pointed out the difference between Bloors’ proposals for 3,500 homes at Kingsdown and the scale of development used to test the capacity of the area more generally, which at between 4,000 - 8,000 homes was, they said, an obviously inappropriate scale of development.

Mr. King on behalf of FRAG commented on the proposed Modifications also.

The representations made on the proposed Modifications were reported back to the respective Committees of the Councils in June and July 1999. No alterations of significance to this case were proposed to those proposed Modifications. It had already been recognised in February 1999 that the nature and detail of the Swindon Development Appraisal Study, together with the need to progress the Structure Plan quickly through the various statutory stages, meant that it would be appropriate to anticipate that the objections to the proposed Modifications would require a reopened EiP. Officers had referred to the detailed new work and said that the EiP should be re-opened because:

“the matter is of particular importance to the proper planning of Swindon. Consequently it merits full and proper examination, in public, of all the information considered by the Councils in selecting this direction of growth for the town”. They also said that there “are clear benefits if the list of matters and participants [at the EiP] is agreed by the Panel, as this will help to give weight to the independence of the Panel and the fairness of the EiP process given the controversial nature of some of the issues. The number of participants will inevitably have to be limited to facilitate an informal discussion round the table.”

Mr. Holgate sought to exploit the way in which the EiP had been managed in order to support his contentions that the policy in question was a detailed policy rather than a general policy, and that if the Councils had a choice, they ought to have chosen the Local Plan route or at the very least ought substantially to have modified the way in which the EiP was conducted. I now turn to the facts relating to that issue.

An initial draft of suggested participants and issues was sent by the Councils to the second Panel. This second Panel did not have the same membership as the first Panel. It responded with its own suggestions on each matter for debate and participants, which were then agreed by the Councils. This agreed list of issues and participants was then sent out for public consultation.

A preliminary meeting was held on 16th September 1999 at which the Panel Chairman pointed out that the EiP was a mechanism to provide more information to the Structure Plan Authorities on selected issues, and that the key criteria for the selection of participants was the contribution which they might make to the discussion, although achieving a balance was important. The number of participants would normally be limited to 30 and it was important, he said, to appreciate that an EiP was a round table probing discussion: “It is not like a traditional planning inquiry, which is adversarial in nature”. He required that submissions on any particular issue should not exceed 2,000 words and said that it would rarely be necessary for them to be accompanied by appendices. If written submissions were received from those whose request to participate had not been accepted, these would be circulated to other participants for their information and the Panel might refer to them during their discussion. Discussions at the EiP should be short and to the point. The EiP was concerned with strategic matters and was not an opportunity to encroach on matters which ought to be dealt with through Local Plans. The Panel recognised that the Swindon housing issue was likely to be subject to the most time pressure and a further half day would be allocated to it if was necessary.

Issue 1 related to the overall County housing requirement, Issue 2 to its distribution, Issue 3 to the role of previously developed land and Issue 4 concerned development at Swindon. The fundamental issue was described as “Does development of the Front Garden on the basis set out in modification 11 represent the most sustainable and realistic strategy to accommodate the future expansion of Swindon?” This issue was divided into three sub topics. The first sub topic was general matters. These included a consideration of how robust had been the process of identifying the preferred direction of growth and the realistic contribution to the overall housing requirement to be made by brownfield and small scale greenfield development. Both Bloors and Bryants were participants. The second sub topic to which a day was allocated was the Front Garden in which the capacity of the area and the environmental and other constraints would be examined. The notes of the preliminary meeting also referred to an allowance for some “unprogrammed time and consequent flexibility.” Bloors were not invited to participate in this topic but Bellway Estate and Wimpey Homes who also had interests in the Kingsdown area were invited, along with Hallam Land Management who had an interest in South Marston, a potential development area close to Kingsdown. FRAG were invited to participate in this issue. The third sub topic was “other locations;” the question which the Panel wished to be considered was whether, from those reported on in Stage 3 of the Swindon Development Appraisal Study, there were “better locations for strategic development, or locations for smaller scale development as an addition to that proposed at the Front Garden should capacity there be insufficient?” The same headings of environmental and other constraints and capacity were to be examined though the Panel said “in less detail than for the Front Garden”. Bloors, but for example not Bryants, were invited participants in relation to the consideration of the Kingsdown area. Neither of those were invited to be participants in the consideration of the area “East of the A419” where David Wilson Homes were a prominent potential developer. FRAG were not participants at either the Kingsdown area debate or the debate over the area “East of the A419”. None of them participated in the debate on Wootton Bassett and Lydiard Millicent.

Bloors complained that they had been omitted from Issues 1 and 2; they were told that they could however put in a written representations. They were told by the Panel secretary that it was considered that their point of view was already well represented on those issues. They did not request to participate in the discussion of Issue 4ii the Front Garden. In the end no written submissions were put in by Bloors in relation to those issues. Mr. Steven Smallman of Dreweatt-Neate produced a supplementary witness statement dated 25th June 2001 in which he stated that he believed it to be true that

“on behalf of Bloor I contacted the EiP Panel to express Bloor’s concern that they were not invited to attend the EiP sessions dealing with the Front Garden. Given that Bloor were the principal promoters of the Kingsdown site I believed that it was inequitable and seriously prejudicial to my client’s interest for them not to have been invited to this EiP session”.

In fact no such request was made and indeed Mr. Smallman did not take the opportunity available to him to put in a written representation even as a fallback dealing with the Front Garden. No explanation was forthcoming before me. I cannot help in consequence but take a pinch of salt when I read his protestations as to the unfairness of the procedure which was adopted and some of his other trenchant criticisms of the way in which the Councils and the Panel considered matters. Perhaps more time spent on getting the facts right and less time on advocacy would have been time well spent.

Mr. Smallman provided a statement on behalf of Bloors for the EiP in relation to Issue 4 “Development at Swindon: General Matters”. In it he said that:

“he strongly endorsed the recommendation of the first EIP Panel that the Structure Plan should include more specific guidance on the direction or directions which peripheral expansion of Swindon should take in the second half of the Plan period ...”.

But his statement referred to the difficulty in formulating guidance at a strategic level, because the strategic guidance had to be sufficiently robust that it could not be undermined at a later Local Plan Inquiry on the grounds that a more detailed analysis revealed serious constraints not previously taken into account.

“The strategic assessment leading to locational guidance must therefore be based on a comparative assessment of the constraints to and opportunities for development and a careful weighting in a strategic context of those constraints and opportunities”. He said that the Swindon Development Appraisal Study was seriously flawed “because it reaches strategic judgments which are unsupported by a thorough and detailed analysis of constraints and opportunities and is based largely on erroneous assumptions”.

A number of other criticisms were made of the Study including the ranking exercise and the use by the Councils of a development figure of between 4,000 and 8,000 houses in assessing the impact of development at Kingsdown when Bloors proposed a maximum of 3,500 houses. The assessment was described as being “subjective and partisan” and the most appropriate site for further peripheral development was said to be Kingsdown. It was pointed out by the Councils and Bryants that this statement by Mr. Smallman did not contend that the Structure Plan process was not the right level in the overall Structure and Local Plan making process at which directional guidance in relation to housing development on the periphery of Swindon should be given. Whilst the statement recognised the problem of determining an appropriate level of detail, the concern was rather that the Structure Plan process should have more detail and that the Study was inadequately detailed. However on the basis of the material which Bloors provided, they were still urging the selection of Kingsdown as the appropriate direction which should be identified in the Structure Plan.

A considerable amount of criticism was directed by Mr. Smallman to the way in which the Councils had assessed the potential contribution of brownfield land at Swindon to the meeting of housing needs. The significance of the assessment of the number of houses that might be produced on brownfield land, lay in its potential for reducing the quantity of housing required on peripheral green field major development sites. This was Issue 4(ic) at the EIP. Dreweatt-Neate were again critical of the Councils’ assessment; they contended that the Councils’ figures were unrealistic and that when following a request from the Panel the Councils provided details of the Swindon brownfield sites which underlay their assessment of brownfield capacity, it was clear from the nature of those sites that they would not in fact yield any housing development; they were in existing and important uses such as educational establishments, hospitals, car parks and the Magistrates Courts. Dreweatt- Neate said that they had carried out their own “detailed assessment of the potential for brownfield and previously undeveloped sites within urban areas in the Borough to contribute to Structure Plan housing requirements.” They concluded that it would be reasonable to allow for no more than 1,800 additional dwellings from unidentified sources within the urban areas during the Plan period. It was pointed out by Bryants that although Bloors said that they had carried out a detailed assessment, they only presented to the EiP a couple of pages; Bryants contrasted this with the lengthy material which they themselves provided to the EIP.

Issue 4(iii)(a) was the Kingsdown area’s potential for development. The Dreweatt-Neate paper to the EIP on this topic said that its analysis would demonstrate that

“the Kingsdown area (North East Swindon) represents a better location for strategic development in accordance with the adopted compact urban form strategy than the Front Garden. However, given the environmental capacity of both Kingsdown and the Front Garden we believe that if the Borough’s housing requirement is to be met in full, the proposed modifications to the Structure Plan will need to identify both Kingsdown and the Front Garden as Major Development Areas”.

The statement referred also to the agricultural land quality of the proposed development area at Kingsdown. It said that a recent field survey carried out by ADAS on behalf of Bloors confirmed that 44% of the site was sub-grade 3a and 50% was sub-grade 3b; a copy of the ADAS Report was available to the EIP. This survey was contrasted with a previous land quality survey carried out by MAFF for the Borough Council at a reconnaissance scale which identified 68% of the site as being sub-grade 3a and 29% as sub-grade 3b. They concluded: “we therefore recommend that Kingsdown (3,500 dwellings) and the Front Garden (3/4000 dwellings) should be identified as MDA’s.” Of course, it is clear that Bloors maintained that Kingsdown was preferable to the Front Garden and the recommendation that both sites should be MDA’s stemmed from the different view taken by Bloors as to the potential contribution of brownfield sites and to a lesser extent also from a different view as to the total housing requirement which the Structure Plan would contain.

Bellway Homes put in a statement to the EIP which repeated many of the same themes including pointing out that the Kingsdown agricultural land quality assessment on behalf of the Council wrongly included grade 2 land, because that assessment looked at a wider area than was proposed for development by the housebuilders.

DPDS, planning consultants to Bryants also put in statements to the EIP dealing with the various issues. It also provided, as a document for the EIP library, its Environmental Statement in relation to the Front Garden and attached extracts as an appendix to its statement, notwithstanding the guidance of the Panel in that respect. It also attached as an appendix its own Swindon Urban Capacity Study containing the methodology and an “executive summary” of the outcome of its Study which, by a different route, supported the more optimistic approach of the Councils as to the potential contribution which brownfield housing development would make to meeting Swindon’s housing needs.

Mr. King also put in written material to the EiP.

The Councils provided position statements to the EIP on a number of issues, and in addition, following a request from the Panel, set out more information about the assumptions which they had used in assessing completions, commitments, windfalls, brownfield site potential and small-greenfield site potential around Swindon so that the Panel could better understand its basis for identifying the residue to be provided in strategic greenfield sites. This was followed up with a further requirement from the Panel in a letter of 27th September 1999 to the Councils requiring a breakdown of the unidentified large sites relied on by the Councils in their briefing note in response to the first request. Mr. Holgate drew attention to the fact that the Panel wished to see the technical work undertaken by the Councils regarding the reassessment of brownfield potential. He also drew attention to the detail which was sought by the Panel in relation to the Front Garden including traffic generation figures, the breakdown of trip generation by mode and a copy of the illustrative master plan for that development. He also pointed out the Panel wished to know precisely the boundaries of the areas that were being considered in Issue 4 and wanted a map more detailed than that which had already been supplied. The Panel commented it would be useful to have a larger scale map with “detailed boundaries annotated to show the various developer interests and representations received.” Mr. Holgate submitted that that indicated the level of detail to which the Panel, inappropriately for a Structure Plan EIP, were descending.

In their position statement on general matters arising under Issue 4.1. the Council referred to the development appraisal exercise as being one which went “into a level of detail sufficient to reassure the two Structure Plan Authorities that the Local Plan process would be capable of taking the selected sites forward.” The Councils contended at the EiP that the exercise had looked in some depth at issues affecting a broad range of sustainability criteria and that their approach was “considerably more robust than would normally be undertaken at a strategic level”. However to have provided a detailed Transport Impact Assessment and an Environmental Impact Assessment for individual areas “would have taken the time and resources normally dedicated to a Local Plan. It would be inappropriate for a strategic exercise and would have unduly delayed the preparation of the Structure Plan”. Although the Council did eventually provide for the Panel and participants the sites which in the Council’s view exemplified the brownfield potential of Swindon, the Council continued to emphasise that these were merely examples of what might come about and were not a definitive list of definite sites. Nonetheless Ms. Jewell in her witness statement points out that a number of these have in fact subsequently come forward.

Although Mr. King in his witness statement made a number of criticisms about the conduct of the EIP particularly related to the extent to which he was able to make the contribution which he would have wished, nonetheless in a letter of 20th November 1999 he wrote to the Chairman of the Panel referring to certain items of fact rather than discussion which he felt they had been unable to cover or respond to and attached those points for the benefit of the Panel. He also courteously thanked the Chairman for the:

“very fair and even handed approach you ensured at the examination and in particular the way you allowed amateur groups to be as much as possible on an equal footing with the heavily supported professional developers, Councils etc.”

In its Report the Panel set out its summary of the conclusions. It concluded that an additional 1,000 houses should be allocated to Swindon over the figure in the proposed Modifications, to reflect a variety of matters including the Government emphasis on brownfield development. In relation to development at Swindon it said that:

“development at Swindon was a key issue at the EIP and a total of four days were spent in examination of matters relating to it. The selection of the Front Garden as the SPAs’ preferred direction of growth was particularly contentious in view of the long standing policy to protect the area from development.

“Although we are critical about some details, we are satisfied that the general process which sought to identify the preferred direction of growth was not sufficiently flawed to render its outcome questionable.

“With respect to the specific locations we reject Kingsdown, Lydiard Millicent and Wootton Bassett for the reasons explained later in this report. We find that the arguments relating to the Front Garden and the eastern area were more finely balanced than suggested in the SDAS. We have particular concern about the loss of the Front Garden as an amenity for Swindon and note the public support for its retention. However we believe we must place greater weight on the need to meet the development needs at an early stage without further delay and in a way that it does not prejudice choices about longer-term development or achieving the most sustainable transport solutions. We do not believe this is possible East of the A419. Our conclusion therefore is that the preferred direction of growth 2011 is the Front Garden.”

I now turn to the Panel’s conclusions in relation to Issue 4. The first topic under “General Matters” was the robustness of the process of identifying the preferred direction growth. In relation to this the Panel concluded:

“4.1.12. Having considered all the criticisms we are satisfied that the general process was not sufficiently flawed to render its outcome questionable. We acknowledge the difficulties faced by the SPAs in carrying out such an assessment at strategic level. We accept that the approach to identifying sites was a systematic one in accordance with guidance offered in draft PPG3. It was transparent and for the most part logical in our view but some confusion did arise over the consideration of two quite different strategies. This might have been overcome by a different approach as described in paragraph 4.1.19 below. Nevertheless we do not consider that had this element of confusion been avoided the outcome would necessarily have been different though there might have been more useful consultation results. Our main concern is with the degree of subjectivity in the detailed assessment of locations. Again we consider that some subjectivity is inevitable at this level but it does make a comparison between locations more difficult if specific conclusions can be challenged. Testing the SPAs assumptions is a primary function of the reopened EiP. These detailed matters are taken on board in looking at the various locations and making comparisons between them.”

The conclusions in relation to the potential for development on brownfield land reflected the controversy at the hearing itself.

“4.1.22. For their part SPAs have put forward a figure of 2589 additional dwellings on previously unidentified recycled land which they describe as realistic rather than optimistic.” [The Panel then referred to the detail of the assessment and to the provision by the Councils of a detailed list of sites which the Councils stressed were examples rather than definitive proposals which should not be examined in detail]. The SPAs “assessment was generally supported by an urban capacity study undertaken by Bryant Homes which estimated that 3,000 new dwellings appeared to be a realistic prospect, 1998 - 2011, allowing as the SPAs had done for uncertainty and probability”.

The Panel referred to the approach of others who thought that 4,000 dwellings might be provided through urban regeneration but stated that there were good planning reasons for taking a more cautious approach, heeding the advice in this respect of the Councils.

The Panel stated that the developers had not discerned as many opportunities and contended that far too much reliance was placed on brownfield development. “Overall they have serious misgivings about the deliverability of anything more than put forward at the last EiP based on small and windfall sites. ... between 1240 and 2400 dwellings”. The Panel specifically referred to the reservation that Bloors had about the prospective residential use of existing employment sites and commented upon it. The Panel reached its conclusions in relation to this issue saying:

“4.1.27. In considering what might be achievable in reality, we accept the SPAs’ point but many of the components referred to by the local groups have been taken on board in their assessment, including housing potential on the former railway works. In general terms we think the SPAs’ assessment of the urban potential in Swindon is robust and that they are being realistic rather than an aspirational in their assumptions. The work of Bryant Homes adds credibility to their findings. We accept that there will need to be policy and financial changes. Even so we do not think it feasible in physical or political terms to achieve the higher level of development (2658) in terms of what might come forward except in the town centre which we consider low. We do believe however there is potential from increased density and reduced vacancy rates and this is also explored below.”

Having considered the town centre density and vacancy rates, the Panel set out its overall conclusions on brownfield potential. The Panel referred to changes since the last EiP, new Government policies, the work done by the Councils and stated that it believed that sites would come forward. They said that they did not share the developers’ pessimistic stance “but we are encouraged by the indications that they have given that they are gearing up to respond to urban regeneration in a positive way.” The Panel stated that it generally concurred with the Councils’ assessment of brownfield potential although there was scope for a further 1000 dwellings from town centre improvements and regeneration, increased densities and reduced vacancy rates. “Rounding up of the 2589 dwellings identified by the SPAs, these additions give a total brownfield figure of 3600”.

Having considered the various sources of development potential other than strategic greenfield development, the Panel concluded overall that taking their recommendation for a dwellings requirement of 23000 for Swindon, the residue to be provided by way of strategic greenfield development was about 3,800. That was the figure against which they assessed the locations for development.

The Panel then turned to the issue of the Front Garden. In its commentary on the background the Panel recognised that Swindon Borough Council was reversing its policy regarding this location. The reasons why Swindon Borough Council had changed its view upon a fresh assessment of the potential directions for growth were recognised, but the Panel whilst accepting that the historical context was not a constraint, also concluded that many of the reasons for past protection of this area remained valid and had to be assessed against the advantages which it might be thought to possess.

Mr. Holgate and in another context Mr. King drew my attention to the recognition by the Panel that the traffic issues in relation to the Front Garden were complex and that much conflicting information was available. This was used to support the submission that the Structure Plan process could not cater for the level of detail which a proper analysis of the demerits of the Front Garden and the merits of Kingsdown required. Mr. King pointed out that the Panel noted that the Southern relief road was programmed post 2007 “but it would be brought forward and funded through the development for which it could act as a distributor road”.

The Panel concluded on traffic and transport in relation to the Front Garden that the situation was not as straight forward as the Councils had suggested. Whilst recognising its advantages, the Panel concluded that the advantages would be off-set by the impact of increased congestion on the already high congested local network. It agreed with David Wilson Estates that the ranking of the Front Garden as “straight As” in the Technical Supplement from the Councils was not justified. However the Panel concluded that: “Nevertheless we believe that the sustainability advantages could be delivered as the location has much going for it because of its relationship to the urban area”.

The Panel examined the Front Garden’s development from the point of view of its effect upon human activity and enjoyment, recreational use and countryside access, visual and landscape considerations, coalescence with Wroughton and access to community facilities. The Panel’s overall conclusions on matters of human perspective was:

“4.2.33. We agree with Bellway Estates and Purton Parish Council that sustainability is not just about reducing the need to travel, although various Government Policy Statements do add weight to this particular aspect. It is clear to us from the level of opposition to development from many quarters that the people of Swindon place great value on this area for its visual amenity and recreational potential and these two factors are very strong points in favour of keeping this area of land open. They deserve as much weight as the transport benefits in our view. Whether Swindon can afford to lose the Front Garden on these grounds alone will depend on how it compares with other locations overall; there are many different matters to consider in making that comparison. On the matters of coalescence and access to community facilities, however there are no convincing grounds for taking the view that development here might not be appropriate”.

The Panel then turned to environmental matters under which heading they considered flooding, which was of particular concern to FRAG. In paragraph 4.2.38, the Panel referred to the flooding as a major issue identified by local residents, with support from David Wilson Estates. In particular, no detailed mapping exercise had been undertaken to determine the full extent of the flood plain. The Environment Agency told the Panel that they would resist any development in the 1 in 100 year flood plain. They confirmed that there was no specific up to date data for this site but that the information available indicated a larger area of flood plain than was previously thought. Detailed hydrological modelling would be required of Bryants. Bryants and the Environment Agency agreed that the work provided by the Institute of Hydrology did suggest more flooding, but could not be used to indicate the areas subject to flooding. The Panel concluded: “we agree that flooding is a constraint but find no convincing evidence to show that the required amount of housing could not be acceptably accommodated.”

The Panel’s overall conclusion on environmental matters was that whilst it noted Wimpey’s concern that not enough weight had been given to environmental constraints

“we consider that the SPAs had taken these matters seriously and have gone as far as they can at the strategic level to identify environmental constraints and to ensure that there are no surprises. We accept that more work is required in certain areas and are satisfied with the commitments to undertake this. These issues are likely to arise in every location. We do not consider that there is anything here to suggest that the development could not take place on environmental grounds and we are satisfied that features of importance could be given sufficient protection.”

The Panel then considered the effect of a whole range of constraints upon the dwellings capacity of the Front Garden. The Panel noted the view of objectors that in the light of constraints “the Front Garden would be one of the last places to put major development”. However the Panel did not agree that the Front Garden could be ruled out, but recognised that the constraints would impose severe restrictions on what was possible. Wimpey and Bellway Estates estimated that as little as 2000 - 2500 dwellings would be possible. David Wilson Estates put forward 3750 dwellings on 148 net developable hectares, though it would be possible to develop more houses if 30 - 40 hectares of employment land were included for residential instead of unjustifiably being put to a potential employment use. Bryants claimed that 6,000 dwellings would be possible on 160 hectares at 37.5 dwellings per hectare. They sought to maximise the dwellings potential on the site. However the Panel concluded that this position “appears to be somewhat optimistic”. The SPAs remain convinced “that 4500 is the minimum dwellings potential based on 145 hectares for development ... we agree that the SPAs’ approach is the most realistic but their figures would need to be adjusted to reflect our view about limiting development at the eastern end of the site.” Overall the Panel concluded that there was the potential to accommodate the 3800 dwellings which it had concluded needed to be made available in strategic greenfield development, in a way which recognised all the identified constraints. The Panel added: “There may indeed be some spare capacity.”

In its overall conclusions on the Front Garden, the Panel set out the variety of advantages and disadvantages which it had as a location for strategic development. It said:

“4.2.50. We cannot dismiss the location as a key contender for accommodating strategic growth on the evidence supplied to and heard at the EIP but we do not have the same enthusiasm for the location as the SPAs. Our primary concerns are with congestion on the surrounding roads and with the loss of an amenity which does appear to be cherished by a large number of people. This latter point could be quite significant in respect of Swindon’s long term growth and future structure. We agree that a number of the rankings given it by the SPAs in appendix 5.3 of the Technical Supplement [to the Swindon Development Appraisal] are questionable in the light of evidence examined, although we make no general attempt to suggest what they might be. It would however be inappropriate to place too much weight on the rankings, which the SPAs concede in paragraph 5.1.17 of the Technical Supplement were only part of the assessment, and the results did not in themselves determine the preferred direction of growth. We refer to the ranking simply to illustrate our conclusion that the superiority of the Front Garden over other locations might not be so marked at the SPAs claim.”

The Panel then turned to the other locations which were put forward as strategic alternatives and considered whether any of them:

“represents a better locations for strategic development or might be suitable for some lesser scale of development to supplement what is proposed at Front Garden if that were necessary”.

They examined four general locations including the Kingsdown area under the same general headings under which they had examined the Front Garden. By way of background the Panel dealt with the various estimates for development needs.

“The SPAs looked at an area to the North East of the town, beyond the A419, with potential for up to 8000 or so dwellings. Those promoting development here (Bloor Homes, Bellway Estates and Wimpey) are proposing something much smaller, 3000 - 3500, recognising physical and environmental constraints in this location and they see it as a development which would complement that at the Front Garden. The SPAs ... considered that the area would be less appropriate than the Front Garden due to its relative distance and isolation from the range of choice of employment and communicative facilities in the town, the potential effect on best and most versatile agricultural land and other important environmental features. They originally concluded that these constraints limited development potential to less than 1,000 dwellings but at the EiP revised this estimate assessment to 1500, possibly a few more”.

On traffic the Panel noted the strong reservations of the Highways Agency to development at Kingsdown. The Agency said that it would discourage development here even on the basis of 3500 dwellings. The Panel considered constraints and capacity at Kingsdown and considered at some length the agricultural land quality position. The Panel said:

“4.3.18 The developers have recognised the various constraints in this location in putting forward their proposal for a much more modest development than envisaged in the SDAS. However, the one key factor that they have not been constrained by is the incidence of best and most versatile agricultural land. A MAFF survey for the Borough Council indicated that 49% of the land was sub-grade 3A which comes within the best and most versatile category and MAFF has reservations about development in this location as a consequence. Bloor Homes commissioned a more detailed survey by ADAS which revealed only 37% to be sub-grade 3A and that this land is in pockets and on the edge of the urban area. According to the SPAs FRCA for MAFF has accepted these findings but has still reservations since a significant percentage of the site remains sub-grade 3A”.

The Panel referred then to Government policy for protecting the best and most versatile agricultural land which required an overriding need for the development with sufficient land in lower grades being either unavailable or subject to a statutory environmental designation.

The Panel noted the argument put forward by the developers that the long term protection of agricultural land was increasingly being questioned but stated:

“We see no justification, however, for deviating from the advice proffered in PPG7 and take the view that the loss of best and most versatile agricultural land remains an overriding consideration. We do not support the developers’ view that locating public open space and the best quality agricultural land so that it is not irretrievably lost offers a solution; once subsumed in an urban environment it would be very difficult to bring back into use”.

The Panel referred to the SPAs’ belief that the capacity of this location, once all important features were protected and development on best and most versatile agricultural land avoided, was only 1500 dwellings or possibly a little more. The Panel noted the SPAs’ claim that at this level development would not support the provision of on-site amenities and said: “We would not see such a development as strategic.” The Panel noted that the developers thought that 1500 was unduly cautious but commented: “Though further studies might be required in respect of the archaeological features, we would broadly accept the SPAs’ analysis unless there is a clearly demonstrated need for development in this location.”

Having set out the advantages and disadvantages of Kingsdown as a location for strategic development, the Panel concluded overall in relation to Kingsdown:

“4.3.23. There is no doubt that a very marketable residential development could be created at Kingsdown but this is precisely because of the quality of the environment in this location which in our view is the most attractive of all those considered at the EiP.”

The contribution of this countryside on the fringe of Swindon to the town “should not be under-rated and carries some weight in our view”. This factor would not by itself rule the site out “but when coupled with its relative isolation and the likely impact of development on the A419 there is a mounting case against development here.” The potential for strategic development was noted “if needed and if it offers advantages over other locations. However, the constraint imposed by the incidence of best and most versatile agricultural land in the context of PPG7 is such that this potential should only be pursued in our opinion if other locations not so constrained and otherwise acceptable also offer that potential, and have sufficient capacity to accommodate our identified need for strategic greenfield growth.”

The Panel then considered the area known as “East of the A419” and agreed with the Councils that this was the only realistic alternative to the Front Garden in terms of overall scale of development and that it had potential as a location for strategic growth in the Plan period. It was however concerned about its relative isolation, its traffic implications and the probable delays in bringing about an acceptable development.

The Panel set out its overall conclusions on the preferred direction of growth as follows:

“4.4.1. Having rejected Wootton Bassett and Lydiard Millicent as potential locations for strategic development, the three options before us are the Front Garden, the Kingsdown area and the area East of the A419. Since neither the Front Garden or the area East of the A419 are constrained by best and most versatile agricultural land but offer sufficient capacity we also reject the Kingsdown area. There can be no justification for considering development there at this time because need cannot be demonstrated in the context of PPG7.

“4.4.2. The choice is thus between the Front Garden location preferred by the SPAs and the area East of the A419. The balance between the two is finer than the SDAS results suggest, since the comparative advantages of the Front Garden are not so evident when subjected to examination. Indeed as regards overall public transport opportunities, there is little different between the two in our opinion. Both locations have advantages and disadvantages as our summaries have indicated. The key question is where does the balance of advantage lie?

“4.4.3. The loss of the Front Garden as a major recreational and visual asset nevertheless remains a primary concern and we give much weight to this particular advantage of the location”.

The Panel referred to the serious concerns which it had about the relative isolation of the size of community which would have to be accommodated in the short term, were development to the East of the A419 chosen, and about the likely traffic impact on the road network; there was also concern at the delay pending investigations into these matters which was something which the Panel felt it could not risk so late in the Plan period. It continued:

“It is our view that the combination of these factors outweighs the loss of the Front Garden and that it would be premature to propose the Eastern area for strategic development.

“4.4.4. Our conclusion therefore is that the preferred direction for growth that 2011 should be the Front Garden. In reaching this conclusion we have also had regard to two other factors. Firstly, even if no development were proposed, the character of the Front Garden and its amenity and recreation value would be affected in due course by the SRR if this were eventually to go ahead. Secondly, if only 3800 dwellings are to be accommodated in accordance with our findings on what is required in strategic greenfield development, there is scope for reducing the impact of development compared with what is proposed by the developers.”

The Panel accordingly recommended that the dwellings figure for the County should be 67000 additional dwellings in the Plan period and that the figure for Swindon Borough should be amended to about 23000. It recommended also that at Swindon the Northern Development Area should be supplemented by the use of suitable sites within the existing urban area “and by development of land in the Southern Development Area identified to accommodate at least 3800 dwellings, being the balance of growth required within the Plan period”. They also recommended that rural buffers should be maintained to protect the separate identities of towns and villages, and should be represented on the Key Diagram by means of a symbol next to rural buffer settlements, one of which was Stanton Fitzwarren. This had the effect of putting the Kingsdown area into the rural buffer.

The next stage in the Structure Plan process was for the Councils to consider the Report of the Panel. Before the Councils in fact considered their response to the Panel’s recommendation, Mr. King on behalf of FRAG sent in detailed comments on the Panel Report to the Councils for their assistance. He was critical of the technical appraisal of development strategies which had been placed before the Panel; he contended that the technical appraisal was biased and queried whether the Councils’ ownership of land at the Front Garden had led to bias. Mr. King concluded that the Panel had accepted that the process was flawed but had failed to realise quite how badly flawed the technical appraisal was. He stated that no proper environmental or ecological study had been carried out and that the SPAs could not possibly conclude that the Front Garden had fewer assets than elsewhere. He also drew attention to the flooding problem as a major issue to which far too little attention had been paid in the light of local knowledge. He challenged the Panel’s point about the effect of the Southern Relief Road saying that its effects would be far less than those caused by the housing and pointing out that the Council had stated that the SRR could only be built if paid for by the developer.

In June 2000 the Councils accepted the Panel recommendations with the benefit of an Officers’ Report recommending that outcome. In turn the further proposed Modifications which resulted from acceptance of the Panel’s recommendations were subject to public consultation. Mr. King on behalf of FRAG made a number of comments about the inappropriateness of development at the Front Garden and the overall number of dwellings, 23000, which the Councils had accepted. No further point at this stage was made in relation to the Southern Relief Road.

Bloors responded in two ways. First, CMS Cameron McKenna, solicitors to Bloors wrote to Swindon Borough Council on 22nd June 2000 complaining that the second EiP Panel had descended into examining the individual components of planned housing provision at the sub-district level and related site specific matters, without fully investigating matters “at an appropriate level of detail” for such an exercise, and contended that the process was therefore flawed. They warned the Councils that Bloors would consider challenging the adoption of the Plan if the flaws in the process leading to its adoption were not rectified. They said that the examination of housing numbers was “based on superficial and inadequate analysis”, that the Panel had been improperly advised and had therefore misdirected itself as to the appropriate definition of “previously developed land” within PPG3, and also that the Panel’s recommendation against Kingsdown “rests mainly on an assumption that the agricultural land quality of the site is greater than the alternative locations”, in respect of which the Panel did not have available “adequate technical information to exercise that comparative judgment”. The rectification of the flaws involved a comprehensive urban capacity study, the provision of full details by the Councils of their previously developed land analysis and an agricultural land classification assessment for the Front Garden site in comparable terms to the assessment carried out for Kingsdown.

The Borough Council responded in August 2000 to the effect that it considered that the work had been done at the appropriate level for a Structure Plan, that the definition of brownfield land had been set out in material before the EiP and that the technical work underlying the SDAS and associated technical studies had been carried out to an appropriate level of detail.

In response to the Borough Solicitor’s invitation to them to let him know if he could assist further, Cameron McKenna wrote on 13th October 2000 to say that his replies were inadequate and glossed over the points raised. A meeting with Officers was offered by the Council but the developers took the view that a further meeting with Officers before the full Council meeting of 23rd November 2000 would be unlikely to progress matters.

The other front upon which Bloors advanced its objection to the further proposed Modifications related to their substance. Dreweatt-Neate put in a written objection stating that the:

“residual balance of housing required in addition to the Northern development area and existing commitments, is, on the basis of information relied on by the Strategic Planning Authorities and the EiP Panel, impossible to establish within any acceptable degree of accuracy. The EiP Panel’s analysis in this respect was fundamentally flawed and the further proposed modifications reliance on that analysis is therefore unacceptable. The second (re-opened) Examination in Public was unusual in that it required the EiP Panel to examine issues one would normally expect to be dealt with at a Local Plan level. Once the Structure Plan process had descended to examining in detail matters such as the residual housing requirement it was incumbent on both the Panel and subsequently SPAs to deal with those matters properly and fully. It is clearly the case that the second EiP Panel made recommendations without fully investigating matters at an appropriate level of detail and that the process was therefore flawed”.

They expressed substantial doubt about the Panel’s assessment of brownfield land development because the Councils had not carried out the appropriate urban housing capacity. They criticised the approach to the Front Garden saying that the site was heavily constrained and had a sustainable development capacity of perhaps between 2500 and 3500 dwellings.

“The EiP Panel did not have sufficient level of technical detail to be able to make a reasonable assessment of the site’s development capacity. It is therefore wholly unacceptable and misleading to suggest that more than 3800 dwellings could be developed on the Front Garden site”.

The comparative analysis was said to be seriously flawed. The example was given of the rejection of the Kingsdown site which it was said rested “solely on an assumption that the Agricultural Land Quality of that site was greater than alternative locations, notwithstanding the Panel did not have available adequate technical information to exercise that comparative judgment”. The changes sought on behalf of Bloors were in summary: more extensive and detailed work should be done in relation to urban capacity and the potential alternative locations; and Kingsdown should be preferred to the Front Garden, which should only be used to accommodate any residual strategic greenfield requirement.

In November 2000 the two Councils concluded their consideration of the objections and representations to the further Proposed Modifications, again with the benefit of an Officers report which set out what those objections were and what the recommended response to them was. The Councils adopted the Wiltshire Structure Plan incorporating the first Proposed Modification and the further Proposed Modifications without further change in response to those representations and objections. In essence, the Councils accepted the Panel’s recommendations, as their Officers advised they should.

The legal framework

I now turn to the legal framework for the decision and submissions.

The contents of structure plans are set by section 31 of the Town and Country Planning Act 1990:

“(2) A structure plan shall contain a written statement formulating the authority’s general policies in respect of the development and use of land in their area.

(3) The policies shall, subject to subsection (4), include policies in respect of -

(a) the conservation of the natural beauty and amenity of the land;

(b) the improvement of the physical environment; and

(c) the management of traffic.

(4) Regulations under this section may prescribe the aspects of such development and use with which the general policies in a structure plan are to be concerned, in which case the policies shall be concerned with those aspect and no others.

(6) In formulating their general policies the authority shall have regard to -

(a) any regional or strategic planning guidance given by the Secretary of State to assist them in the preparation of the plan.

(b) current national policies;

(c) the resources likely to be available; and

(d) such other matters as the Secretary of State may prescribe or, in a particular case, direct.”

Section 31 (10) adds that “policies”, except in section 31(6)(b), includes “proposals”.

Mr. Holgate places very substantial reliance on the phrase “general policies”. He contrasts that approach with the provisions related to local plans which deal with “detailed policies”:

Section 36 provides:

“(2) A local plan shall contain a written statement formulating the authority’s detailed policies for the development and use of land in their area.

(3) The policies shall include policies in respect of -

(a) the conservation of the natural beauty and amenity of the land;

(b) the improvement of the physical environment; and

(c) the management of traffic.

(4) A local plan shall be in general conformity with the structure plan. ...

(6) A local plan shall also contain -

(a) a map illustrating each of the detailed policies; and

(b) such diagrams, illustrations or other descriptive or explanatory matter in respect of the policies as may be prescribed,

and may contain such descriptive or explanatory matter s the authority think appropriate ..

(9) In formulating their detailed policies, the authority shall have regard to -

(a) such information and other considerations as the Secretary of State may prescribe or, in a particular case, direct ...

(11) For the purposes of this section “policies” includes proposals.”

Mr. Holgate reinforces the distinction which he draws, by reference to the provisions for Structure Plan Key Diagrams contained in Regulation 5 Town and Country Planning (Development Plan) (England) Regulations 1999 No. 3280.

“(1) A structure plan shall contain a diagram, called the key diagram, illustrating the general policies formulated in the plan’s written statement.

(2) A structure plan may also contain a diagram, called an inset diagram, drawn to a larger scale than the key diagram, and illustrating the application of the general policies to part of the area covered by the structure plan. ...

(4) No key diagram or inset diagram contained in a structure plan shall be on a map base.”

Local Plan maps are to be on a map base, by contrast.

The same distinction between “general” and “detailed” policies is found in sections 12(3) and 12(4) of the 1990 Act which deal respectively with Parts I and II of a Unitary Development Plan. Those provisions apply where a single planning authority is given those powers and a single Development Plan is produced. Swindon Borough Council is not one of those authorities, and in the absence of an agreed Joint Structure Plan with Wiltshire County Council, would produce both a Structure Plan and a Local Plan for the area of its Borough. There are not many authorities in that position as a result of local government reorganisation. Mr. Holgate’s submissions on the appropriate Plan level, structure or local, at which to analyse the selection of the future direction of growth in Swindon, are made in this unusual context: the Borough Council as a Structure Plan Authority could itself decide and certainly was party to the decision as to whether its own Local Plan was the appropriate vehicle for making that selection. A Structure Plan Authority is rarely faced with that decision; it would normally decide whether it or another authority would make the selection, as opposed to one authority deciding which of the Plan options potentially available to it, it would select. He further reinforces the distinction, emphasising the level of abstraction at which he submits a Structure Plan operates, by reference to the different procedures which precede the adoption of Structure and Local Plans, in particular at the point of independent scrutiny.

It is unnecessary to set out in detail the statutory processes which underline what I believe to be an uncontroversial but brief description of the differences upon which Mr. Holgate relies.

A Structure Plan is examined at an Examination in Public. The topics for examination are determined by the local authority. The independent and expert Panel which holds the examination and the authority together select the participants to be invited to attend for the examination of which topic; there is no right to participate or to be heard although written representations from non-participants are received and considered. The examination takes the form of a probing discussion led by the Panel around the table of participants; it rarely involves any direct questioning of one participant by another. The time allotted for oral discussion is determined by the Panel rather than by what the participants feel they have to say, although there is a very great deal of reading which is done in advance. The Panel Report has to be considered by the Council which has to give reasons for its decisions on the recommendations.

The Department of the Environment “Guide to Procedures” advises that the Authority should select those issues on which they need to be more fully informed by means of public discussion in order to reach their decisions. Accordingly the basic criterion in selecting participants will be the significance of the contribution which they can be expected to make to the discussion of the matters to be examined. The Guidance specifically states that “as the purpose of an EiP is to discuss the selected issues, rather than to hear objections, it is not intended that all those who have objected should be invited to the examination. ... the aim will be to select participants ... who between them represent a broad range of view points and have a relevant contribution to make.” The Guidance identifies that there will be an opportunity for those who wish to do so to comment on the selection of issues and participants. The function of the Chairman is to lead the discussion, draw attention to the issues on which information is required and to order the discussion. The Chairman will ensure that the selected issues are examined in appropriate depth so as to enable the Panel to make recommendations without lapsing into a level of detail inappropriate to the plan or EiP. Legal representation is discouraged.

It is the objections to a Local Plan which are considered by an Inspector at an Inquiry at which objectors have a right to be heard, witnesses are called and cross-examined often by Counsel. The process is altogether more formal, and more detailed. Many objections are dealt with in writing. It is increasingly common for general issues common to many objectors e.g. housing need, to be dealt with at less formal round table sessions conducted by the Inspector. The Inspector’s report has to be considered by the Council and reasons given for the decisions reached by the Council in relation to the Inspector’s recommendations.

PPG12 “Development Plans” December 1999 revision, sets out Government policy in relation to the different functions of Structure and Local Plans. The 1992 version was not significantly different.

“Structure Plans produced by County Councils and some Unitary Authorities in many cases on a joint basis set out key strategic policies and provide a framework for Local Plans”.

“Local Plans in which more detailed policies are set out to guide development in a particular local authority area. The Plans cover the whole of a Local Authority area and may include detailed proposals for specific sites”. (Para 1.7).

Paragraphs 3.7 and 3.8 contain more specific guidance which is of relevance when examining the phrases “general policies” and “detailed policies” in their statutory context, looking at the purpose of those phrases.

“3.7. The main function of the Structure Plan is to state in broad terms the general policies and proposals of strategic importance for the development and use of land in the area, taking account of regional and national policies. The Structure Plan should avoid over elaborate or detailed policies and should concentrate on providing a strategic framework within which detailed policies can be framed in Local Plans. They should not include detailed development control policies. While there may be justification for extending the scope of Structure Plan policies in particular cases, the Secretary of State may use his powers of intervention to delete policies which he considers are not strategic in nature or the level of detail is not justified.

“3.8.Structure Plans and Part I of the UDPs should provide a statement of the overall strategy for development and the use of land in the area. This should be set within the context of sustainable development objectives (as set out in paragraph 4.1 below), and should indicate how development will be served by transport and other infrasture. Policies should therefore be limited to strategic policies and proposals which provide an appropriate framework for local plans and development control, by:

setting out the local authority’s policies on each of the topics required by legislation (see paragraph 3.2 above) and those listed in the box below, where they are appropriate to the area;

indicating the scale of provision to be made in the area as a whole, including, for example, figures for housing in each district and, where appropriate, the broad location of major growth areas and preferred locations for specific types of major developments (eg retail, leisure and employment);

indicating the general location of individual major and strategic developments likely to have a significant effect on the plan area (eg a new settlement): and indicating broad areas of restraint on development.

Housing or employment provisions below district level should only be included in structure plans where it is necessary to distinguish between the needs of different areas within a district for strategic purposes (eg by making housing provision within a given distance of a main employment centre, or in order to assess the general conformity of plans).”

The vires of the inclusion of Policy DP10 in the Structure Plan as a “general” Policy

Mr. Holgate QC submitted that section 31(2) provided for a duty on a structure plan authority to include its “general policies” in the Structure Plan, and by necessary implication precluded such an authority including them in favour of “detailed policies” in a Structure Plan, omitting them from a Local Plan which is where in law they should be. Mr. Holgate further submitted that policy DP10 was not a “general policy” of the Structure Plan authorities but was a “detailed policy” of one of them, Swindon Borough Council, which should be in that Borough’s Local Plan, pursuant to section 36(2). He said that the question of where further major housing development should take place to meet Swindon’s housing requirement was a matter of the Council choosing between specific sites. The differences between the candidate sites involved finely balanced planning judgements, which turned upon a careful and detailed analysis of a range of issues, some of which were quite technical. This selection process could not be revisited at the Local Plan stage, because the Local Plan would have to conform generally to the Structure Plan. The procedural differences between Structure and Local Plans showed the scope of the difference between a “general” and a “detailed” policy; a general policy had to be one fit for debate and resolution through the EiP process. Such a process is neither meant to resolve nor is it capable of resolving the detailed issues which underline the selection of major housing sites. The choice of site was also strongly influenced by the calculation of the residual greenfield housing requirement, itself a matter for detailed scrutiny. The issues were essentially Swindon Borough issues rather than ones involving other parts of the County.

He supported his submission by reference to the fact that paragraph 4.48 of the Deposit Draft of the Structure Plan had said that “Further scope [for major housing provision] should therefore be identified in the review of the Local Plan”. This view was rejected by the Panel which held the first EIP for what Mr. Holgate submitted were the impermissible reasons of timescale and resources, as set out in paragraphs 4.42 to 4.44 of its Report; paragraph 17 above.

Mr. Holgate submitted that the question of whether a policy was a “general” policy or a “detailed” policy was a question for the Courts. The provisions of section 31, as indeed of section 36, imposed an obligation on local authorities to include their “general” or “detailed” policies within the appropriate plan. It was for the Courts to decide whether that duty had been complied with, which entailed the Court reaching its own decision as to the nature of the policy. The Act does not use in this context some phraseology such as “those policies which the Council considers to be general” or “those policies which the Council considers appropriate for inclusion in the Structure Plan”. An application under section 287 of the 1990 Act challenges a decision on the grounds that it is not within the powers contained in the Act. A decision as to whether action by an authority is within its powers may involve the determination by the Court itself of factual or evaluative issues.

Mr. Holgate supported his submission by reference to Westminster City Council v Great Portland Estates plc 1985 1AC 661 House of Lords, and to a decision of mine in Kingsley v SSETR and Cheshire County Council (2001) 82 P&CR 85. In the former case, the relevant issue was whether the Westminster City Council Local Plan had breached the provision equivalent to Section 36(2) in that its policies:

“for office development, albeit couched a exclusions to a general prohibition and described as non-statutory policies were improperly excluded from the local plan and its statutory processes”.

Lord Scarman said at page 674D-G:

“But what is the position if it can be shown, as in this case, that the reference to exceptional or special circumstances is a cover for policies excluded from the plan?

The statute requires that a local plan shall formulate in such detail as the council thinks appropriate their proposals for the development and use of land: section 11 and Schedule 4, paragraph 11(2) of the Act of 1971. If a local planning authority has proposals or policy for the development and use of land in its area which it chooses to exclude from the plan, it is, in my judgment, failing in its statutory duty. An attempt was made to suggest that the non-statutory guidance in this case went only to detail, as to which the council is given a discretion. But the council provides the answer to this point: it speaks in its guidelines of its non-statutory policies. In the Court of Appeal, Dillon L.J. demonstrated by his quotations from paragraphs 3.2, 3.3 and 3.4 of the non-statutory guidelines that they do indeed, as the council itself says, contain matters of policy relating to the control of office development outside the central activities zone.

It was the duty of the council under Schedule 4 of the Act of 1971 to formulate in the plan its development and land use proposals. It deliberately omitted some. There was therefore a failure on the part of the council to meet the requirements of the Schedule”.

Mr. Holgate submitted that the House of Lords itself had undertaken the task of assessing whether the non-statutory policies were indeed policies which should have been in the Plan, even though that task was made very straightforward because of the Council’s own description of them as policies.

He also submitted that that was the approach which in Kingsley, I had attributed to the House of Lords and therefore pursuant to which I had undertaken the task of assessing whether the contentious words in the Explanatory Memorandum were policies, even though again my task had been made easy by the nature of the policies and the rather weak arguments to the contrary.

Mr. Drabble QC for the Councils and Mr. Lockhart-Mummery QC for Bryants both submitted that the correct approach for the Court was to ask whether the Councils had concluded reasonably that the SDA policy was a “general” rather than a “detailed” policy. The Courts were not the body charged with deciding on the content of Structure Plans, and on the demarcation between Structure and Local Plans. The planning authorities’ judgements should be accepted unless they involved a clear misdirection in law. The Courts were not intended by the 1990 Act to resolve issues of planning judgement.

The House of Lords had not explicitly held that it was for the Court to decide what was policy. Its decision, in view of the Council’s own description of the material as policy, should be seen as compatible with their submissions in this case as to the approach to be adopted.

The result in Kingsley was, they submitted, likewise consistent with that approach. If there were nuances to my reasoning which were inconsistent with that approach, they were, with all due deference and respect, wrong.

The Policy was a“general” Policy because of its strategic nature; it was an area for major growth likely to have a significant effect on the plan area. The Councils’ approach was consistent with past practice in Wiltshire in relation to Swindon, as approved by the Secretary of State, who also made no complaint about the current Plan, notwithstanding his power to do so. It was consistent with PPG12.

It was not disputed by Mr. Holgate that if that approach were correct and that if the Councils had taken into account the relevant considerations in reaching that conclusion, it was not an irrational conclusion.

I now turn to my analysis of this issue. The question for the Court on this part of the challenge is whether the inclusion of the disputed policy was beyond the powers provided by section 31(2) of the 1990 Act. The power, indeed the duty is to put into the Structure Plan a statement of “the authority’s general policies”. The duty under section 31 can properly be contrasted with the duty on Local Plan authorities under section 36(2) in relation to their “detailed policies”. Section 31(5) deals with other illustrative, descriptive or explanatory matters by way of regulation. The Town and Country Planning (Development Plan) (England) Regulations 1999 No. 3280 Regulation 5 (4) requires that the key diagram and any inset map should not be on a map base, as did its 1991 predecessor.

It is the function of the Court to construe the statutory provisions including the phrase “the authority’s general policies,” in section 31. The meaning of that phrase in its statutory context is a matter of statutory construction and hence of law. It is a phrase repeated in section 31(6), and is to be contrasted with the language of section 36 on local plans.

The task of statutory construction here requires a court to discern and express the meaning of the statutory provisions, their scope or limits, or defining characteristics. I put it that way because the phrases in question do not readily permit of the expression of their true construction by a process of substitution of more or different words. It is easier to set out what are the characteristics which define the concept, in its statutory context, or rather to identify whether a particular characteristic is within or without the statutory concept.

Once the Court has determined, as a matter of law, the scope of the phrase “general policy,” the decision whether a particular policy is within its scope is a matter for the decision-maker provided that he has correctly directed himself as to its scope, or its defining characteristics and not by reference to irrelevant characteristics or considerations, and has reached a decision which falls within the scope of the phrase as a matter of law. It is not a question of whether his interpretation is reasonable and therefore right. It is a question first of statutory construction and then of application: what is the scope of the statutory phrase? Does the policy fall within its scope? Both questions are for the Court but the latter is answered by a review of the application of the true scope of the phrase to the facts, rather than a primary decision by the Court. If the policy is reasonably regarded as falling within the true scope of the phrase, there is a duty to include it in the Plan.

I have set these matters out at some length, first because the Westminster City Council case appears to me to suggest and my decision in Kingsley actually holds that the issue of whether a document is a policy document was one for primary decision by the Court. In both the Westminster City Council and Kingsley cases, the considerations which I have set out above would not have affected the results because the result of the proper application of the statutory provisions could only have led to one result. Arguments along the lines of those successful in R v London Borough of Hillingdon ex parte Puhlhofer 1986 AC 484 were not specifically considered in the Westminster City Council case, though appear to have been raised in argument.

There does not appear always to be a consistent approach in the authorities to this issue. However, I have had the opportunity to examine the matter in greater depth in this case than I did in Kingsley. I accept the submissions of Mr. Drabble and Mr. Lockhart-Mummery that a different approach to the application of the phrase, once properly construed by the Court, is called for. I have set out above what I consider the appropriate approach to be.

I have also reached the conclusion that a number of specific features of the statutory provisions in question reinforce that approach. The most important is that there is a specific obligation in section 31(6) on the authority to have regard to the Secretary of State’s regional guidance and national policies in formulating its general policies. PPG12 is a national policy document; it gives guidance as to the relationship between Structure and Local Plans, between general and detailed policies, which I have already referred to in paragraph 94 above. Of course, the Secretary of State cannot by guidance turn a detailed policy into a general policy. However, the very existence of his role in that respect suggests that the role of the Court in applying the phrase “general policy” once properly construed, is not the primary one.

Second, the very nature of the judgment called for in this statutory context points strongly to it being one primarily for the planning authority rather than one for the Court. Whilst I deprecate any attempt to imply into a statutory duty words which turn the duty into a matter of discretion, the very breadth or vagueness of the concept involved here, the multitudinous range of circumstances which policies cover, and the consequential obligations on local planning authorities to produce local plans which generally conform to the structure plan and to make planning decisions which accord with it, reinforce the primary assessment or evaluative role as belonging to the planning authority.

A rather lesser indication but pointing the same way is the reference to “the authority’s general policies.” The possessive indicates that it is their general policies at stake rather than those which a Court may determine are their general policies. It is relevant that the Council has to decide whether or not to have a policy. I do not accept that the ouster provision in section 284 or the basis of challenge in section 287 themselves offer any guide as to how the error of law is established in relation to the construction and application of an Act.

I now apply that approach to the issue of whether Policy DP10 is a “general” or a “detailed” policy. The concept of a “general” policy as opposed to a “detailed” policy is not easy to encompass in a single sentence or two in a way which fits all circumstances. The very word “general” can denote universality, normality the essential features or gist of something or vagueness to be contrasted with specificity, or detail. The word takes its colour here from its contrast with “detailed”. Guidance is also to be found in the function which a structure plan performs in setting the framework for local plan making and development control decisions. General policies are those which should be determined at the structure plan level in that plan-making hierarchy. PPG12 uses the phrase “strategic” policies, which is an apt reflection of that structural function. They are important for the structure or framework for development of the area in question. All of those are aspects of a general policy which can be present to a greater or lesser degree depending on the circumstances and in relation to which an authority’s conclusion that a policy is a general policy should be judged.

I also consider that the differing procedures through which Structure and Local Plans pass, in particular the different forms of independent scrutiny, can be of some assistance in understanding the scope of the phrases “general policies” and “detailed policies”, because the former have characteristics appropriate for independent scrutiny at an EIP, the latter have characteristics appropriate for objections to them to be dealt with at an Inquiry.

There is rarely a problem in discerning whether a policy is a detailed as opposed to a general policy or vice versa. The problem potentially arises where as here, the Structure Plan contains a policy about the location of e.g. housing development at a sub-District level. In effect, submits Mr. Holgate, there is no room for doubt as to where the Southern Development Area is. However the Southern Development Area is described, the policy in reality goes beyond indicating a mere general direction as to the future growth of Swindon, and by its nature is or is close to being site specific. This was therefore a decision, he submits, which was one for Swindon Borough Council alone to take at the Local Plan level.

There are however circumstances in which a general policy, in the sense of a structural or strategic policy, may require a structure plan policy at a sub-District level. A single major development e.g. a new settlement may be required in the County; a number of general locations in one or more Districts may be considered; the Structure Plan could legitimately contain a “general” policy which identified not just the District but the general location within the District for such a development. Indeed the selection of the District may in effect identify the preferred development location if it were the only one discussed in that District during the Plan process.

The same would be true of the general location of a major development which could have influences beyond the boundary of the District in which it is sited, whether e.g. by reason of proximity to the boundary with another District or by reason of, say, the impact of its traffic upon roads serving both Districts.

However, I do not consider that an impact beyond the District boundary or a choice of sites for major development in two Districts are the necessary ingredients for a policy to be “general” in the sense of strategic or structural.

To my mind, the key characteristic relevant here is scale or significance to the County or Structure Plan area. A policy can be a “general” policy, not just because it may resolve an issue which may be contentious as between Districts or because of a specific impact across district boundaries, but because the general location of the County’s major developments, within a particular District can properly be regarded as of structural or strategic significance. Dreweatt-Neate’s phrase at the first EIP as to what was strategic or structural is of assistance: “the general location of individual developments likely to have a significant effect on the Plan area.” A major housing development, of some 3800 houses intended to serve the needs of Swindon is also serving a County need. The general location of that development and the general direction of growth of one of the County’s major towns which that entails, can properly be seen as a structural or strategic matter, even though the choice is about what happens within one Borough. The level of detail here is not self-evidently greater than would be involved as the result of a choice between major growth areas in different districts, yet the latter would be expressed in what would undoubtedly be a “general” policy.

It undoubtedly was the case that the question of the future direction of growth involved the examination, between the first EiP and the first Modifications, of a range of possibilities of which one, Wootton Bassett, was outside Swindon Borough Council’s area. However that was not the reason why the policy was strategic. Indeed, if it had been the reason, once that option had been rejected and the only remaining areas contemplated were within Swindon, it would have been possible to provide in the policy merely that the 3800 dwellings had to be provided within Swindon’s own area, leaving any greater level of locational precision to the Local Plan.

It is my judgment however that the general location, though not the specific development site boundaries, of major residential development and the associated direction of growth of a major town can itself be seen as strategic or structural in relation to a county, and “general” in that sense. I do not consider that the difference between general direction and general location means that only the former ranks as a “general” policy.

Adopting the approach which I believe to be correct in law, that feature or characteristic of Policy DP10 means that the Councils could conclude, without any misdirection of law that it fell within the scope of section 31, as a “general” policy.

The Councils can properly be influenced also by the consistent way in which the direction of development of Swindon has been seen as structural or “general” in earlier Structure Plans, and also by the stance adopted by various bodies, including Bloors, at the two EiPs. I would have been reluctant to regard as unreasonable what appeared to be a generally agreed common approach. The Councils’ approach was also consistent with the advice in PPG12, to which they had to have regard, as to the drawing of the line between general and detailed policies; paragraph 94 above. The evidence of Mr. Durrant for Bryants described the way in which similar policies for the location of major growth were dealt with in other counties’ Structure Plans e.g. Hampshire in 2000, also a Joint Structure Plan. This too would be relevant to the Councils’ considerations.

It is a fallacy underlying Mr. Holgate’s submission that the policy is site specific. It is direction specific, though at the Front Garden there are obvious natural and man made boundaries which as a matter of common sense define the location within which the development site boundaries will be found. That degree of definition of the general location, however, is merely the consequence of the selection of this general location; such obvious definition of the general area would not necessarily have existed in other locations.

There is also no greater degree of locational specificity than might have been necessary had the two competing locations been in different Districts and thus their location incontestably a matter for resolution at the Structure Plan level. I appreciate that Mr. Holgate, perhaps as the necessary logical consequence of his argument did contest it, but his argument served to highlight the fallacy rather than the strength in his case. If a major development is needed and could be located in one or more Districts, the notion that the Structure Plan should identify a need, and then as a matter of vires leave directional guidance to a joint Local Plan Inquiry involving one or more authorities, is one which involves such an abdication of responsibility by the Structure Plan authorities that it betrays a misinterpretation of section 31. If the issues had been between the Front Garden and Wootton Bassett, a development appraisal study would have been appropriate and a selection made. It cannot sensibly be said that that had to go before a joint Local Plan Inquiry or that the general definition in DP10 had to be abandoned in favour of a general reference to Swindon, when everyone would know why Swindon rather than North Wiltshire had been referred to. This is not an uncommon problem e.g. in relation to new settlements. It is, or can properly be regarded as a structural matter, with whatever practical requirements that may impose as to how the matter is efficiently considered before, at and after an EiP.

There is one further point I note here. The Structure Plan is a single Plan for the whole of Wiltshire and Swindon Borough, but its preparation satisfies the Structure Plan making obligation unusually imposed, as a result of local government reorganisation, on a Borough. It may be that that can affect the level at which a policy is seen as “general” as opposed to “detailed”. However that was not a point raised before me as a justification for the inclusion of policy DP10.

However, I conclude that there is no necessary misdirection as to the meaning of “general policy” in a conclusion that policy DP10 has a necessary defining characteristic to be such a policy. There may be a number of such characteristics, which permit the conclusion that a policy is a general policy on different bases depending on the circumstances. In these circumstances, such a characteristic is present. This is not to say that in all circumstances, a Council must conclude that the general direction or location of a large development is a structural matter; it depends on the view taken as to its structural or strategic significance.

Mr. Holgate however submitted that the basis upon which the Councils in fact concluded that the policy was a general policy was that it was quicker and more efficient to include it in the Structure Plan in order to reduce the cost of a Local Plan Inquiry and to avoid pre-emptive speculative planning applications leading to section 78 appeals. This type of consideration, submitted Mr. Holgate, is entirely irrelevant to whether a policy is or is not a general policy.

I accept the principle of this submission. There may be advantages in saving of time and money in dealing with a policy at the Structure as opposed to Local Plan level. But I cannot see how that can be something which falls within the scope of the phrase “their general policies”. If taken into account, it involves a clear misdirection as to the scope of the phrase or as to the considerations relevant to its application to the facts.

I emphasise that the statute does not give to planning authorities a discretion to choose whether to put a policy in a Structure or Local plan according to some general criteria of what they believe to be reasonable in the interests of proper planning. No discretion is given at all. Certainly, a judgment is involved as to whether a policy is “general” or “detailed”, strategic or local and that judgment involves the proper consideration of planning matters, but only of those relevant to the application of the concept of a “general” policy, properly understood, to the circumstances involved in the interests of proper planning. If a policy is a general policy within the true scope of that phrase in its context, there is a duty to include it in the Structure Plan, and if it is a detailed policy, there is a duty to include it instead in the Local Plan, when it is produced. Policy DP10 was undeniably one or the other. There is no power to conclude that it is a detailed policy but better dealt with at Structure Plan level. There is no discretionary basis for including detailed policies in the Structure Plan, not least because the appropriate form of independent scrutiny would thus be side-stepped.

It is perfectly clear that the first Panel recommended that the matter be dealt with at the Structure Plan level in part for reasons which have nothing to do with whether DP10 would be a general policy or not. Their Report, at paragraph 17 above suffices for that.

Swindon Borough Council certainly accepted the recommendations of their Officers on 13th October 1997 that they should accept the Panel’s recommendations that firmer positive directional guidance be given in the Structure Plan for reasons which included the delay and pre-emptive speculative applications which could be expected were this matter to be left to the Local Plan. However, the Council also wanted to extend the area to be examined so that it covered North Wiltshire District, and in particular the Wootton Bassett area. The Joint Structure Plan Working Group recognised the soundness of that point and the significance of the outcome of the process for Swindon and its surrounding settlements.

The Councils’ decisions as to the proposed modifications which were to be considered by the second EiP, although recognised to be of particular importance to the planning of Swindon because of Policy DP10, simply carried forward the considered output of the Swindon Development Appraisal Study which flowed from the acceptance of the first Panel’s recommendation.

At the second EiP, the Councils in their position statement were justifying the level of detail at which the issues of urban capacity and location for major greenfield development were considered by reference to the strategic nature of exercise, and leaving the more detailed analysis, with Transport and Environmental Impact Assessments to the Local Plan. They did recognise that the Development Appraisal had been done at a level more detailed than necessary for a Structure Plan, but that more detailed work was both a valuable back-up to the general judgment at Structure Plan level and would be useful in later Local Plan work. The delay which would be created by researching the issues in more detail was referred to but that does not indicate an error in the approach at that stage as to whether this was a general policy.

The second Panel itself looked at the level of detail necessary to reach what it saw as a series of strategic decisions on housing requirements at County and District level, urban capacity in Swindon, the residual greenfield requirement and the location for the direction of the future growth of Swindon.

The whole thrust of its approach was that it was dealing with what it considered to be strategic, at Structure Plan level, and it did not do so for reasons of urgency, let alone because it felt obliged to carry through some inappropriate exercise embarked on following the recommendation of the first Panel. That thrust is embodied, I consider, in the extracts of its Report set out above and in particular in paragraphs 64 - 76.

The recommendations were accepted as sound, and the Plan was adopted accordingly. There is little explicit reasoning given for the use of the Structure Plan process for this policy after the consideration of the first Panel’s report. There is nothing remarkable in this because it was not the case for Bloors or for Mr. King before or at the EiP that the Local Plan should have been used. Bloors were concerned that the Panel did not have enough detail but were not arguing that the Panel should decline to recommend the direction of growth in deference to the Local Plan in view of the detail involved. Even after the EiP when the further Proposed Modifications were being considered, the criticism was the same: the Panel had not examined matters in the detail necessary for them to reach the conclusions which they did, and the problem which a Panel would face in conducting an EiP at that level of detail was referred to. However, it was not suggested that the policy in question was one which had to be dealt with in the Local Plan because it was in law a “detailed” and not a “general” policy.

Mr. King did not make that point either.

Obviously, that does not prevent the Claimants now raising this point as to the nature of the policy. But it does help explain why no explicit consideration was given to whether this was still a “general” policy, if the need for speed were irrelevant. For example, there was no explicit consideration of how this policy fitted with the relevant guidance in PPG12 as to the split between Structure and Local Plan policies.

However, I do not consider that it would be a fair reflection of the facts to treat the irrelevant consideration of the need for speed as continuing to taint the way in which the Councils regarded the policy right up to the moment of adoption. The second Panel looked at this policy as a strategic policy because it was the major growth location for a major town; the Panel was conscious of the need to examine the policy at a strategic level. It did not suggest that the policy contained an inappropriate level of detail for a Structure Plan; I am quite sure that it would have said so if it had thought so. The Councils in following its recommendations were implicitly accepting its approach. It was not more explicitly expressed for the simple reason that there was no contrary express suggestion; the complaint was rather that the Panel had had insufficient detail. If at the point of adoption, the Councils had been asked whether Policy DP10 was one of “their general policies”, the answer would have been “yes,” rather than “no,” it was one of their detailed policies but put in the Structure Plan because it was quicker and more efficient to do that.

The next issue raised by Mr. Holgate in relation to the “general” or “detailed” nature of the policy is that, if the Councils had a discretionary judgment to reach as to whether a policy was a “general” or a “detailed” policy, they either failed to consider the matter at all or to have regard to certain relevant considerations. Those considerations included the question of fairness to objections such as Bloors and Mr. King. Fairness to objectors was a matter for the Councils to have regard to, as held in the context of a decision whether or not to reopen a Local Plan Inquiry, by the Court of Appeal in Warren v Uttlesford D.C. 1997 JPL 1130, p 1135 per Schiemann LJ.

Particular aspects of fairness in Bloors’ submissions related to the differing forms of independent scrutiny, notably the differing levels of detail into which an EiP would go compared with a Local Plan Inquiry, and the right to attend, to present and cross-examine witnesses at a Local Plan Inquiry compared with selected participants engaging in a time-constrained, inquisitorially chaired round-table discussion at an EiP. Mr. Holgate and Mr. Morgan for Mr. King referred to details of matters which their clients would have wished to contest through a detailed examination of witnesses, from urban housing capacity to the effect of various environmental constraints. Mr. Holgate referred to areas of discussion in which Bloors were not invited to participate.

Mr. Holgate supported his submission by reference to the Human Rights Act 1998. Bloors’ human rights were engaged by these policy decisions because of the crucial effect which this Structure Plan policy would have on the Local Plan process, since the Local Plan could not generally conform to the Structure Plan without a Southern Development Area for 3800 dwellings. This in reality would mean that section 54A would preclude the grant of planning permission for major residential development on land where Bloors had property rights. The role of independent scrutiny was thus particularly important; the more likely it was that a general policy would have a determinative effect, the more important that each “human’s” rights should be protected through a process of individual and detailed analysis in which it could participate fully. He did not suggest that the Structure Plan process itself was incompatible with the ECHR, but his argument was supportive of the need for the Councils to consider fairness to objectors in deciding which form of Plan process should be adopted, and if it were to be the Structure Plan process, then what particular features the EiP or related processes should adopt in the interests of fairness. This need was given added acuity because of Swindon Borough Council’s ownership, post local government reorganisation, of much of the Front Garden.

The problem with these submissions is that their premise is wrong, for the same reason that means that it is irrelevant to whether a policy is a general policy or not, that it might be quicker and more efficient in plan making to put it in the Structure Plan.

I emphasise again, the true nature of the legal question. It is for the Courts to determine what the phrase “general policy” means, it is for the Councils to apply that rationally to the given facts or circumstances. The determination of the scope of so broad a phrase in this context may be done by identifying features which are necessary, or which define it by contrast with its contextual opposite “detailed”, or by features which are relevant. The differing form of scrutiny available is relevant: a general policy will tend to be suitable for analysis via an EiP; that gives some colour to the concept.

However, none of that amounts, as a matter of simple statutory construction, to a discretionary power to include in a Structure Plan those policies which the Councils consider it reasonable to include in a Structure Plan or to exclude them from it for later inclusion in a Local Plan, having regard to all those usual considerations relevant to the exercise of a discretionary procedural power. The Act is not so formulated. The relevance of the form of scrutiny to a sense of the true meaning of “general” as opposed to “detailed”, does not convert the duty to include “general” policies into a broad discretionary procedural power. It does not import some separate consideration of fairness.

Section 31 contains a positive duty and is a very different provision in nature from that which was under consideration in Warren v Uttlesford D.C. That case did concern a discretionary procedural power, in the exercise of which fairness was material. Section 31 is no such thing.

The concept of fairness has nothing directly to do with whether a policy is a “general” policy or a “detailed” policy, any more than speed and efficiency have anything to do with that issue. There is no scope for that concept to be a feature of “general” or to enable “general” to be contrasted with “detailed”. A general policy is not the less general because it might be fairer if it were a detailed policy, nor is a Council able to treat a “general” policy as one for the Local Plan because that might be fairer : its duty is to include it in the Structure Plan. The obligation to consider fairness along the lines of Warren v Uttlesford D.C. does not exist.

I accept that there might be circumstances in which actual or prospective unfairness as a result of the procedure adopted was a potent indicator that a Council had misinterpreted the scope of “general” or “detailed”. However I do not consider that that situation applied here, and I shall deal with that later.

On the key issue, I consider that the Councils did not act beyond their powers in including Policy DP10 in the Structure Plan as a “general” policy. I do not consider that they had a discretionary power to exclude it because of any consideration of procedural unfairness. It would have been as irrelevant to whether a policy was “general” or “detailed” as was the question of speed and efficiency.

I appreciate the attraction of the point that the Secretary of State exercised none of his powers of direction in section 35(2) of the 1990 Act or of call-in in section 35A in relation to this policy and its consideration. It is a power rarely exercised and cannot assist on the true scope of “general” - it may assist on the justification for the application of the phrase to this policy. But I have not found it of significance because the power is so rarely exercised. It may lend weight to the argument that the primary decision as to whether a policy falls within the true scope of “general”, properly understood, is for the planning authorities rather than the Court.

Procedural fairness, the level of detail, the consideration of issues at the EiP and the reasons.

Mr. Holgate’s submission that if matters were to be examined at an EiP, the procedures ought to have been specifically adapted to provide fairly for the necessary examination, is closely bound up with the level of detail into which he submits it was necessary for Panel to go in order to deal fairly with the points raised, to consider the relevant matters and to enable the Councils to reach reasoned decisions on its recommendations and on the subsequent objections to the proposed Modifications.

I have already adequately described the procedures adopted at an EiP in paragraphs above. Section 35B(1) provides for the EiP to examine “such matters affecting the consideration of the proposals as they consider ought to be examined.” Section 35(4) states that no person has a right to be heard at an EiP, and in section 35(5)(b) provision is made for participation by those invited by the Panel or local authority. No procedural regulations have been made. It is however clear that the essential features of an EiP are set by statute. The real scope for variation according to particular circumstances rests with the timetabling and degree of detail allowed, which are matters for the Panel’s discretion. I do not consider that the actual progress of the EiP and subsequent reasoning of the Panel and Councils show that a markedly different procedure from that which the Panel in fact followed was required for fairness, or indeed effectiveness.

The Town and Country Planning (Development Plan)(England) Regulations 1991 S.2794 provided that following the EIP the authority is under a number of duties:

i. to consider the Panel report and prepare and make available for inspection a statement of the decisions reached in the light of it and the reasons for those decisions, reg 16(1), (2) & (3);

ii. where the panel report recommends modifications which the authority do not intend to accept, to make a list of those recommendations available for inspection and given an opportunity for objection, reg 16(4);

iii. where the authority propose to modify the Structure Plan to prepare and make available for inspection a list of modifications, advertise the modifications and give an opportunity for objection, reg 18(1).