QUEEN'S BENCH DIVISION
B e f o r e :
|BOVIS HOMES LTD|
|NEW FOREST DISTRICT COUNCIL|
|ALFRED McALPINE DEVELOPMENTS LTD|
|SECRETARY OF STATE FOR THE ENVIRONMENT,|
|TRANSPORT AND REGIONS|
Smith Bernal Reporting Limited,
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040 Fax No: 020 7421 1424
(Official Shorthand Writers to the Court)
MR R HARWOOD (instructed by Legal Department to New Forest District Council) appeared on behalf of New Forest District Council
MR D ELVIN QC & MR J MAURICI (MISS K OLLEY for judgment only) (instructed by the Treasury Solicitor) appeared on behalf of the Secretary of State.
HTML VERSION OF JUDGMENT
Crown Copyright ©
MR JUSTICE OUSELEY:
"D1.4 The two principal criteria used by the New Forest Committee for defining the New Forest boundary were:
ito incorporate the land of outstanding national importance for its natural beauty, including flora, fauna, geological and physiographical features, and elements arising from human influence on the landscape, including archaeological, historical, cultural, architectural and vernacular features;
ii to incorporate essential grazing land. This includes peripheral farmland which is or has recently been used as grazing land in conjunction with the New Forest, or which is part of an area which could be suitable to be utilised for grazing relating to the forest (whether with Forest Rights or not) so as in aggregate to include a sufficient pool of land to provide an adequate supply of back-up and the continued functioning of the historic dispersed pastoral regime relating to New Forest commoning in the long term. Convenience of access to the open forest was also considered in this context.
D1.5The detailed alignment of the boundary also takes into account the need to:
iincorporate the minimum area of land beyond the open forest which is essential to protect important open forest landscapes in the long term;
ii ensure continuity of local ecological habitats between the open forest and adjoining land; and
iii utilise, wherever possible, easily recognisable physical features such as roads or rivers."
"2.22 The ancient farmed and wooded landscapes of the Forest. Most of the large ancient woodland complexes, outside the Forest core, occur within this landscape type. These create a strong sense of enclosure and form important ecological corridors linking the Forest core with the surrounding farmland. The undisturbed rural character of this landscape offers a contrast to the busier enclosed landscapes of both the heathland, the Forest smallholdings and dwellings types."
"12.1.1While there is a strong sense of landscape continuity throughout the objection area, there are subtle differences between the landscape to the north of the low ridge that traverses the area between the A36 and M27, and that to the south.
12.1.2 The landscape to the north of the ridge is open with panoramic views. The area is characterised by large fields, with relatively few hedgerow trees and copses. The M27, pylons and overhead power lines are intrusive features.
12.1.3 South of the ridge there is a significant increase in the numbers of hedgerow trees, and these, together with the smaller field pattern create a greater sense of enclosure. At present this enjoys visual and ecological links with the area to the est. However, completion of the Totton Western Bypass will totally sever the area from the remainder of the Forest.
12.1.4 While displaying some of the characteristics of landscape type 5, ancient Forest farmland, the objection area does not display these characteristics in sufficient strength or depth to justify its inclusion in the Heritage Area as part of the wider Forest landscape. Neither is its inclusion justified for the reason of outstanding national importance for its natural beauty. It cannot be included on grounds that it constitutes land required as essential back-up grazing. The line of the Totton Western Bypass and the M27 link will form a clear and defensible boundary."
"He has carefully considered the reasons set out for the Council's proposed
modification. In his view the reasons given do not provide convincing justification for overriding the Inspector's conclusions and recommendation, particularly with regard to the effect of the Totton Western Bypass and the role which the road would play as a firm boundary to the Heritage Area. The Secretary of State therefore requests the Council to reconsider its proposed modification at paragraph 12.1.8 of the Modifications, to redefine the boundary as recommended by the Inspector or to provide further reasons if they do not propose to do so.
This letter and the Council's response should be placed on deposit along with other representations on the proposed modifications."
"Land North of Totton ... is a protected area within which development will not be permitted which would prejudice consideration of the inclusion of the land within the New Forest Heritage Area."
"I have laid out this detailed analysis because it indicates the substantial points in debate, which are specifically directed towards the agreed criteria, which in turn, in the inspector's view, could only be completely understood by a proper appreciation of those issues which he had identified in his introduction to this topic. The matter under consideration was complex. In my judgment, the Inspector's report constituted careful reasoning reflecting that complexity, and the conclusion reached was overwhelming."
"1.17 It is important to note from this summary of the key stages in arriving at the current position that the District Council has consistently followed the recommendations of the New Forest Committee. Clearly the designated New Forest area which has National park status for planning purposes should only have one boundary and the boundary in the statutory development plan should coincide with that promoted by the New Forest Committee for other purposes. The position taken by the District Council is entirely in line with that proposed by the Minister in 'The Future for the New Forest' (March 1990) where he stated that:
'... we take the view that the way forward would be for the new Heritage Area Committee (now called the New Forest Committee) to agree revised boundaries to incorporate essential grazing land as well as the best of the landscape around the Forest's perambulation in consultation with the Countryside Commission as appropriate.'
(Library Document 6.8: 'The Future of the New Forest'; Appendix A, paragraph 6.)"
"2.28 The objection site retains sufficient visual and ecological links with
the land to the West and sufficient 'ancient forest farmland' character to justify its inclusion within the area of outstanding importance for natural beauty. It has some potential for grazing use by commoners and this adds weight to its inclusion."
"5.1.14. I turn now to the consideration of the objection land in terms of its outstanding national importance for its natural beauty, its flora, fauna, geological and physiographical features, and the elements arising from human influences on the landscape, including archaeological, historical, cultural, architectural and vernacular features, (as referenced in para 1.6 (ii) of DOC/6.2). Mr Beasley in 1992 does consider there to be discernible contrasts between the landscape character of the areas lying to the north and to the south of the ridge at Hillstreet, but concludes that neither area conveys a sense of 'being in the Forest', and considers the southern area to have many of the characteristics of rural landscapes immediately beyond built-up areas. It could however be argued that areas further to the south and to the west of the A326 Bypass at Totton in the New Forest also have urban fringe characteristics particularly with sporadic and ribbon housing development, but the A326 sets a well-defined barrier to further outward urban expansion, and having crossed the 'barrier' there is a sense of continuity and relationship with the New Forest countryside. In respect of the objection area, both the A36 and the A326 are satisfactory as strong physical features on the ground to demarcate the New Forest. However the A326 does set a stronger barrier ecologically, and is also much more invasive into the local topography. Landscape planting as it further matures will assist in assimilating the A326 into the local landscape and will screen traffic from view from the land on both sides of the road, but the fact remains that it is an alien feature 'within' the New Forest landscape.
5.1.15 The objection land is categorised as Landscape Type 5 (LT5) ancient forest farmland, and is part of a wider area identified by the LUC as running from the boundary of the Perambulation at Goldenhayes through to Wade Hill. Part of this block of LT5 has already been excluded from the New Forest as already referenced. The A326 is now a reality and the question remains whether there is sufficient historical and visual continuity to justify the retention of the objection land as an integral part of the New Forest, having regard to the intervention of the A326. Are the linkages sufficiently strong? There is a limited measure of historical and visual continuity. There is some measure of continuity in landscape and wooded character; the heathland and ecological linkages are weak and ancient woodland links do not exist. There are commoning linkages but these are not strongly established. Collectively the linkages are not of sufficient force to justify including this relatively limited outer area of land within the body of the New Forest. The A326 Bypass is a key consideration in this determination, and I conclude as did Mr Beasley in June 1993, that it forms a clear and defensible boundary for the New Forest in this locality. Notwithstanding the fact that the objection site differs from that considered by Mr Beasley, I do not disagree with his other conclusions nor does the evidence placed before me persuade me otherwise, that the land is of outstanding national importance for its natural beauty in its own right for inclusion in the New Forest."
"3.83 Given that the Inspector has considered all the available information in relation to the sites listed above, and that no new information is available to provide a reason for rejecting his recommendations, it is considered that at this stage, there is no option other than to publish modifications for public comment which accord with these boundary changes. The one in the Avon Valley is already District Council policy. Other updating is also proposed to this part of the plan.
3.84For some time it has been apparent that the local plan process is an inappropriate mechanism for establishing the boundary of an area of national importance. However, it is a requirement of the approved Hampshire County Structure Plan that for planning purposes the boundary of the NFHA be defined in local plans."
"1. This would exclude from the New Forest Heritage Area land which the Countryside Commission, who advise Government on National Park issues, have concluded and advised should remain within the Heritage Area; and
2. It is premature to exclude this land from the Heritage Area before the Government has made its announcement on measures to designate and give special protection to the New Forest Heritage Area which are equivalent to that of a National Park."
"The Council have not accepted the Inspector's recommendation that land north of Totton be excluded from the New Forest Heritage Area. The Secretary of State consider that the council have not provided convincing reasons for overriding the Inspector's conclusions and recommendations. It is insufficient merely to refer to evidence which has already been considered at the local plan inquiry. In addition it is incumbent on the local authority to reach a decision on the New Forest Heritage Area boundary in the context of the local plan and it is not appropriate to comment that the matter is premature in the light of possible future announcements about the status of the New Forest. Accordingly, the Secretary of State requests the Council to reconsider its decision not to accept the Inspector's recommendation at section 5.1.17 of his report, or provide further reasons if the Council propose not to do so."
"... it is important for members to remember that the Council is in effect 'judge and jury' in these matters and therefore must deal with the objections thoroughly, conscientiously and fairly, as laid down by the Courts. This must be done objectively. This is particularly so where the Council is departing from the recommendation of the local plan Inspector and wishes to alter, add or amend the reasons that it has previously given."
"3.26. The Countryside Agency have made the following points (note, a copy of the relevant part of the Inspector's report is included at Annex 4 to this report):
i. While recognising the points made by GOSE about the Structure Plan and other processes, they remain concerned about the way in which the boundary of an area which is treated for planning purposes as if it were National Park is being determined through the local plan process.
ii. Having considered the Inspector's conclusions and recommendations, they remain of the view that this land meets the landscape criterion for inclusion of land in the NFHA. The Inspector does not question Land Use Consultants' classification of the area as Landscape Type 5, Ancient Forest Farmland, which is a landscape type suitable for inclusion in the NFHA, and he accepts that in terms of its landscape and wooded character, it demonstrates a measure of continuity with the NFHA to the west (Inspector's report paragraph 5.1.15). In his paragraph 5.1.14, he goes so far as to refer to the road as an alien feature 'within' the New Forest landscape, which is to accept that the land north of Totton forms part of this landscape. In referring to the previous local plan inspector's conclusions in respect of the wider area then proposed for inclusion in the NFHA, he points out that the land north of Totton shares many characteristics of land west and south of Totton which is included in the NFHA (inspector's report paragraph 5.1.14).
iii. In terms of the boundary criterion for including land in the NFHA, they do not dissent from the Inspector's view that either the A326 or the A36 would form a satisfactory physical feature of demarcating the NFHA (Inspector's report paragraph 5.1.14).
iv. The Inspector concludes that collectively, the linkages with the NFHA are not of sufficient force to justify including this land within the NFHA. The Countryside Agency consider that the determining factor in his argument seems to be the impact of the A326 Totton Western Bypass. They consider that the Inspector has focused on linkages across the road, whereas he should have been considering whether:
(a) the disruption/disturbance caused by the A326 to the land north of Totton is so strong that it diminishes the Forest character of this land to an extent which warrants excluding it from the NFHA; and
(b) given that this is all Landscape Type 5, the severance caused by the A326 is sufficient to warrant the exclusion of the land north of Totton.
When the previous local plan inspector looked at this issue, the bypass had not been built. It is now in existence, and a clearer impression can be formed of its impact. The Countryside Agency believe that the Forest character of the land north of Totton is still clearly evident, and the A326 does not diminish its quality or detract from its character to a degree which warrants its exclusion from the NFHA. Furthermore, the Countryside Agency's view is that development or road construction within a designated area such as a National Park or an Area of Outstanding Natural Beauty would not in itself be a reason for reviewing the boundary of the designation, unless the impact on the severed area were such that it were no longer of a quality or character which merits its inclusion.
[Note: in the context this comment by the Countryside Agency Members might wish to note that the Inspector's report does not refer to other areas of the NFHA severed from the rest by major roads, e.g. land east of the A326 in the Waterside, and land north of the A36 at West Wellow and Plaitford, although these are not dual carriageways.]
3.26. In respect of the grazing criterion, the Countryside Agency point out that the Inspector has accepted their point that, although the current use of the land for commoners' grazing would not justify inclusion on this criterion alone, some weight should be given to this factor. The Inspector concludes that it 'would be suitable for grazing related to the Forest' (Inspector's report paragraph 5.1.13). This echoes the element of the grazing criterion that refers to land which 'could be suitable to be utilised for grazing relating to the forest'. While there is a general agreement that the land could not be included solely on the basis of this criterion, it is a factor that should not be ignored.
3.28. The Countryside Agency conclude that the Inspector has given insufficient weight to the ways in which the land meets the criteria for including land in the NFHA, and too much weight to the severance caused by the A326.
3.29. The views of the Countryside Agency as set out in points ii to iv of paragraph 3.26 above do reflect planning considerations and are material to the Committee's decision. However, it must be emphasised that Members must also take into account all the representations received, and attention is directed to all the objections and representations in support listed at pages 6 to 10 to Annex 2. It is essential that the decision on this matter is taken on the basis of its planning merits, rather than the views of any one representation, however strongly expressed.
3.30.If Members are minded to adhere to their previous decision in respect of the Inspector's recommendation, clear planning reasons must be given for this decision. It is clear from the representations received that the previous reasons given are not adequate."
"3.30 If Members are minded to adhere to their previous decision in respect of the Inspector's recommendation, clear planning reasons must be given for this decision. It is clear from the representations received that the previous reasons given are not adequate."
"The Committee received legal advice on the process they should follow in considering whether land to the north of Totton should be included in the New Forest Heritage Area. Their attention was drawn to the need to approach this matter in an open-minded and objective manner; to carefully evaluate the Inspector's views and recommendations; and to look at the planning merits only of the question of whether or not this land should be included in the Heritage Area."
"Members expressed the view that the coach tour earlier in the morning had been invaluable in allowing them to evaluate the merits of whether or not this land should be included in the New Forest Heritage Area. They had noted the degree to which the land east of the A326 was visually linked to the land to the west of the road, as well as the question of whether this land was of a landscape type and of sufficient quality to warrant inclusion.
The Committee concurred with the Inspector's view that this land was properly classified as Type 5 landscape (Ancient Forest Farmland), which qualified for inclusion within the Heritage Area. The Committee then considered the Inspector's view that, although the land qualified on landscape grounds, it had effectively been severed from the Heritage area by the A326, which was a dual carriageway in this location. The Committee had noted the continuity of field patterns between this land and the land to the west of the A326, and that, when viewed from surrounding vantage points, the road was barely visible and caused no break in the continuity. It was also noted that elsewhere along the A326, the road had not been deemed to sever land to the east from the New Forest Heritage Area.
The Committee went on to consider whether the construction of the A326 had damaged the quality of the land to the east of the road. It was noted that the spoil from the construction had been deposited to the west of the new road and indeed was now totally indistinguishable within the landscape. Members were satisfied that, when passing through the landscape in question, for example along Pauletts Lane, the landscape was totally typical of Ancient Forest farmlands elsewhere in the Heritage Area."
"(i) Having further considered and visited the New Forest Heritage Area north and west of Totton and specifically the land north of Totton and east of the Totton Western Bypass the Council holds to the view that this land meets the landscape criterion for inclusion of land in the New Forest Heritage Area. The Inspector accepts without comment Land Use Consultants' classification of the area as Landscape Type 5, Ancient Forest farmland, which is a landscape type suitable for inclusion in the New Forest Heritage Area, and he accepts that in terms of its landscape and wooded character, it demonstrates a measure of continuity with the New Forest Heritage Area to the west (Inspector's report paragraph 5.1.15). In his paragraph 5.1.14, he goes so far as to refer to the road as an alien feature 'within' the New Forest landscape, which is to accept that the land north of Totton forms part of this landscape. In referring to the previous local plan Inspector's conclusions in respect of the wider area then proposed for inclusion in the New Forest Heritage Area, he points out that the land north of Totton shares many characteristics of land west and south of Totton which is included in the New Forest Heritage Area (inspector's report paragraph 5.1.14).
(ii)In terms of the boundary criterion for including land in the New Forest Heritage Area, the Council agrees with the Inspector's view that either the A326 of the A36 would form a satisfactory physical feature for demarcating the New Forest Heritage Area (Inspector's report paragraph 5.1.14); and [the council] can see no reason for preferring the A326 to the A36.
(iii) The Inspector concludes that collectively, the linkages with the New Forest Heritage Area are not of sufficient force to justify including this land within the New Forest Heritage Area. The determining factor in his argument seems to be the impact of the A326 Totton Western Bypass. The Council consider that the Inspector has focused on linkages across the road, whereas he should have been considering whether:
(a) the disruption/disturbance caused by the A326 to the land north of Totton is so strong that it diminishes the Forest character of this land to an extent which warrants excluding it from the New Forest Heritage Area; and
(b) given that this is all Landscape Type 5, the severance caused by the A326 is sufficient to warrant the exclusion of the land north of Totton.
When the previous local plan Inspector looked at this issue, the bypass had not been built. It is now in existence, and a clearer impression can be formed of its impact.
The Forest character of the land north of Totton is still clearly evident. The A326 does not diminish its quality or detract from its character to a degree that warrants its exclusion from the New Forest Heritage Area.
In respect of (b) above, the Countryside Agency's view is that development or road construction within a designated area such as a National Park or an area of Outstanding Natural Beauty would not in itself be a reason for reviewing the boundary of the designation, unless the impact on the severed area were such that it were no longer of a quality or character which merits its inclusion. In this context the Council note that other land within the New Forest Heritage Area is properly designated through the local plan while being severed by major roads (e.g. land east of the A326 in the Waterside, and land north of the A36 at West Wellow and Plaitford)."
"... Members formed the view that neither of the local plan inspectors who had considered this issue had fully appreciated the forest character of this land and that, despite the impact of the A326, it was indistinguishable from land of that landscape type in the Heritage Area to the west of that road."
"He considers that the reasons advanced by the Council do not provide any additional information which was not available and considered by the Inspector at the Inquiry and he remains concerned about the adequacy of the statement of reasons."
"3.9In response, the following points are made:
*the Council's revised reasons do not present new evidence but rather explain the planning grounds for disagreeing the Inspector's reasoning and conclusions;
*it is well known that the New Forest District (East) Local Plan Inspector also recommended the use of the (then planned but not implemented) A326 as a boundary for the NFHA. However, he was considering the much larger area then proposed for inclusion in the NFHA, extending east of the proposed line of the A326 to Hillstreet and north to the District boundary. He did recognise a difference in character within the larger area. Having regard to the varying character, the Council subsequently identified the land south of the A36 Salisbury Road as being appropriate for inclusion in the NFHA;
*it remains the view of this Council that the land north of Totton is properly identified as Landscape Type 5, and that the land is very similar in character to other such areas west of the A326 and indeed elsewhere in the Forest. This character is not diminished by the presence of the A326, to a degree that warrants its exclusion from the NFHA, and the area therefore satisfies the landscape criterion for inclusion in the NFHA [see Annex 1, Minute (c)]."
The Statutory Framework
"287.--(1)If any person aggrieved by a ... local plan ... desires to question the validity of the plan... on the ground---
(a) that it is not within the powers conferred by Part II, or
(b) that any requirement of that Part or of any regulations made under it has not been complied with in relation to the approval or adoption of the plan,...
he may make an application to the High Court under this section.
(2) On any application under this section the High Court---
(b) if satisfied that the plan... is wholly or to any extent outside the powers conferred by Part II, or that the interests of the applicant have been substantially prejudiced by the failure to comply with any requirement of that Part or of any regulations made under it, may wholly or in part quash the plan..."
"16(1) Where a local planning authority cause a local inquiry or other hearing to be held for a purpose mentioned in regulation 14(1)..., the authority shall, after considering the report of the person holding the inquiry, ... prepare a statement of-
(a) the decisions they have reached in the light of the report and any recommendations contained in the report; and
(b) the reasons for those decisions."
"16(4) Where the report of the person holding the inquiry... contains recommendations that the statutory plan proposals should be modified in a manner specified in the report and the local planning authority intend not to accept one or more of those recommendations--
(a) the authority shall make a list of the recommendations that they do not intend to accept available for inspection from the date on which, and at the places at which, the report is made available for inspection;
(b) the notice given... shall record the authority's intention not to accept those recommendations and invite objections and representations to be made in respect of that intention within six weeks of the date on which the notice is first published in a local newspaper;
(d) where a local inquiry or other hearing is held to consider [one or more of] the objections made to that intention, regulation 14 shall apply,... and this regulation shall apply following such a local inquiry or other hearing... as it applies to a local inquiry or other hearing... mentioned in paragraph (1); and
(e) where objections have been made to that intention in accordance with these regulations and not withdrawn and the local planning authority do not cause a local inquiry or other hearing... to be held, regulation 17 shall apply to the consideration of the objections as it applies to the consideration of objections to statutory plan proposals."
"17.--(1) Where objections have been made to statutory plan proposals in accordance with these regulations and not withdrawn and the local planning authority do not cause a local inquiry or other hearing or examination in public to be held, the authority shall prepare a statement of their decisions as respects all the objections and their reasons for each decision."
The Reasons Challenge
"In the following circumstances, but only in these circumstances, it can still be appropriate to speak, and in some cases to vote, in spite of the fact that you have declared such a clear and substantial private or personal interest:
(a) if your interest arises in your capacity as a member of a public body, you may speak and vote on matters concerning that body; for this purpose, a public body is one where, under the law governing declarations of pecuniary interests, membership of the body would not constitute an indirect pecuniary interest;
(b) if your interest arises from being appointed by your local authority as their representative on the managing committee, or other governing body, of a charity, voluntary body or other organisation formed for a public purpose (and not for the personal benefit of the members), you may speak and vote on matters concerning that organisation."
"It can still be appropriate to speak and in some cases to vote."
"31. The Local Government Ombudsmen believe that councillors should still consider whether in the light of the facts of any such case and in their own particular circumstances it is appropriate to participate.
32. There may be, for example, circumstances where it would be inappropriate for the councillor concerned to take part in voting on the matter, if a council is considering a controversial planning application from a public body of which a councillor is the chairman, the Ombudsman may regard it as improper for that councillor to vote on whether permission should be given. The councillor concerned might in the eyes of the public be seen as too closely committed to the proposal from the public body. Similarly, if it is proposed to enter into some contractual arrangement with a company controlled by the local authority, and particularly if there are competing would-be contractors, it would be inappropriate for a local authority member who is a director of the company controlled by the local authority to take part in the council's consideration, even though the company might be regarded as an organisation for a public purpose. But a Local Government Ombudsman did not criticise members of a district council who were also parish councillors for participating in an application for an entertainments licence for a village hall owned by the parish council."
"The participation of a single member who is disqualified by bias vitiates the decision."
"6.11.6 Many of the opportunities for regeneration at Sittingbourne will result from the town's good accessibility to the A2 and the M2 via an improved A249. ...
6.11.6 ... In the longer term a northern distributor road will allow development opportunities focusing on damaged land to be brought forward. ... It will be for the development plan to establish the boundaries for these areas, and to bring them forward in a phased manner which is closely linked to improvements to the town's road infrastructure.
6.11.8 In bringing forward proposals through the development plan, opportunities should be sought to fashion a more sustainable arrangement of land uses than is currently seen at Sittingbourne. ... "
"5.3.56. Land is allocated for 550 units to be provided within the Plan period. A first phase of 250 dwellings to the south of East Hall is proposed to be completed in the period to 2001. This should be in association with the construction of part of the Northern Distributor Road from the north, to be agreed with the Borough Council, but which must provide access to the site from the Milton and Kelmsley Distributor Road and from the Eurolink Industrial Park. A second phase to the south, for 300 units, to the year 2006, is also proposed, in associate with a further phase of the road."
"(f) Northern Distributor Road
5.6.18 Whilst the road proposals described above will greatly enhance the transport environment of Sittingbourne, the limiting factors of an overstretched A2, Milton Creek and the railway will mean that the longer term highway strategy for the town needs to consider a full Northern Distributor Road for the town.
5.6.19. The desirability of a Northern Distributor Road is strong. It would provide an important link between the A2 and A249 and ultimately Sheerness Port without the necessity of traffic passing through Sittingbourne. ... It is recognised in the Transportation Strategy for Sittingbourne that the provision of this route would need to be a private development funded project.
5.6.20 Given its length, and the need to cross the creek and the railway, a considerable amount of development is required to support its construction. The Local Plan provides for housing and economic development at Murston (see Policies B37, H66 and SS7).
5.6.21 Approximately one-third of a bypass for the town could be provided with the completion of Milton and Kelmsley Distributor Road. This will leave the crossing at Milton Creek and a loop to the north east of the town, crossing the main railway line and eventually joining the A2, to be provided. Completion of the full road is not expected in the lifetime of the Local plan
5.6.23 It is expected that the development in North East Sittingbourne shown in the Local Plan will provide the new road from the north west as far as the railway line. The remaining length of road will be provided outside the period covered by this Local Plan."
"9. The identified housing sites, together with the anticipated contribution from windfall sites have the capacity to meet the Structure Plan requirements and guideline figures for each of the Planning Areas. However, taking account of site specific recommendations, I conclude that because of various constraints there is likely to be a shortfall of around 530 dwellings in Sittingbourne, 450 on Sheppey and 20 in Faversham.
10. In the case of Sittingbourne and Faversham Planning Areas it is considered that the allocated sites and sites with planning permission represent the preferred options for development and that consequently it would be inappropriate to identify replacement sites at this stage. However, I consider there is a real possibility that land to the north of Ridham Avenue, Kelmsley, land at East Hall Farm, Murston and land at Abbey Park, Faversham either will not be developed or will not yield the anticipated number of dwellings in the Plan period. As a consequence, I am recommending the identification of reserve sites which would be brought forward in clearly defined circumstances if it becomes evident that this will be necessary. The reserve sites that I am recommending are: Stones Farm for East Hall Farm, Quinton Road for land to the north of Ridham Avenue and Station Road, Teynham for Abbey Park. Whilst the reserve sites should be identified on the Proposals Map they should not be shown within the relevant built-up area boundaries."
"13 As major allocations of the Plan in Sittingbourne rely on the construction of the Northern Distributor Road, I consider that there should be a specific policy in relation to the road and that its line should be shown on the Proposals Map, joining the A2 to the west of Bapchild. The engineering works involved will make the road very expensive and whilst there is a possibility of grant aid it will be primarily developer funded. Although I recognise that it would be preferable to construct the road from the north-west, there should be provision to construct it from the south-east if a contract for the section of the Milton Kelmsley Distributor road, on which it is reliant for connection to the A249, is not in place by a given date. Construction from the south-east would trigger the release of stones farm."
"18. The highway authority have informally indicated that they would not be opposed to the development of up to 200 dwellings off the access road to the Eurolink employment development in advance of the provision of the NDR. This would enable a start to be made on the East Hall Farm site within the first part of the remaining Plan period.
19. I would accept that there is considerable uncertainty associated with the provision of the NDR and the M&KDR. However it is concluded elsewhere (5.6.6) that the complete route between the A249 and Bapchild should be shown on the Proposals Map. It is also recommended that whilst the preferred option would be to construct the NDR from the north-west, the Plan should introduce flexibility by allowing for construction from the south-east if by early 2000 it becomes apparent that there is likely to be significant delay in the provision of the M&KDR.
21. Although this is a strategic site which will have affected the Structure Plan housing requirements, the possibility of identifying a reserve site, that could be brought forward in the event of it proving impossible to fully develop East Hall during the Plan period, should be examined. Any reserve site should provide the same community benefits and avoid prejudicing the eventual development of the strategic sites."
"In 5.11.19 rewording is required to recognise that temporary access for up to 200 houses via Eurolink III will be acceptable."
"51. East Hall Farm is a strategic site forming a component of a comprehensive development associated with the provision of the NDR. Assumptions on the availability of the site will have influenced the Structure Plan housing requirements. It could be argued that if the potential of the site was not achieved in the Plan period it would be a matter for consideration in the context of a review of the Structure Plan. However, the most likely cause of delay would be problems in the construction of the NDR from the north-west. Modifications that I am proposing to the Plan would facilitate construction of the road from the south-east should the desired course prove to be unachievable. This would enable the development of the Stones Farm site which would in any event probably have formed a part of the eventual overall development of North East Sittingbourne in conjunction with the provision of the NDR. The development of Stones Farm would in my view accord with both the Thames Gateway Initiative and strategic policy. Although this site would only partially off-set the shortfall that would result if East Hall Farm fails to provide more than 200 dwellings in the Plan period, I am recommending elsewhere that Stones Farm be identified as a reserve site in the event that the NDR cannot be constructed from the north-west and that it is consequently impossible to fully develop East Hall Farm during the Plan period."
"15. The Deposit Draft Plan envisages no construction on the East Hall site prior to the provision of the section of the NDR to link it with the MKDR, this would include the crossing of the navigable Milton Creek, the Sittingbourne and Kelmsley Light Railway and land likely to have a low bearing capacity and subject to landscape and nature conservation constraints. Although there is the possibility of Central Government assistance in the form of Section 13 grants both the MKDR and the NDR would be essentially developer funded, with the NDR (and possibly elements of the MKDR, not required to facilitate development at the Kelmsley and Ridham), relying on the development at North East Sittingbourne to fund their construction. Recognising the high costs associated particularly with the creek crossing, the Council and the Highway Authority would now accept up to 200 dwellings with access initially via Castle Road and through the Eurolink industrial area as a 'pump priming' measure. Whilst such an access would be far from ideal and may also deter some would-be developers it is considered acceptable as a short-term measure until link age to the NDR can be provided. In the circumstances it would be inappropriate not to allow any development at East Hall Farm until the NDR and its link with the MKDR were in place as suggested by the Sittingbourne Society.
16. It is accepted that construction of the NDR from the north-west would bring the greatest benefits in terms of relief of town centre roads, would ensure the construction of the most difficult and expensive part of the road first and would provide a direct link from the development to the improved A249 which RPG9a recognises to be at the heart of the regeneration opportunities at Sittingbourne. This however relies on the prior provision of a significant part of the MKDR which in turn depends on developer funding and the need for it would not be triggered until 140,000 sq m of industrial development at Ridham had been completed and occupied. Whilst the scenario described by some objectors who question the ability of development at North East Sittingbourne to finance the necessary link and the practicality of it being provided in is somewhat pessimistic, I consider that there is a real risk that it will not be possible to provide linkage to the MKDR during the Plan period. I write this having particular regard to the uncertainty over the provision of the section of the MKDR to the south of Ridham Avenue, which like the creek crossing, would involve land which is not in the control of the prospective developers at North East Sittingbourne.
17. It is consequently recommended that whilst the Plan should encourage provision of the NDR from the north-west, it should provide the flexibility to enable linkage to the A2 to the south-east should reassessment of the situation, in say early 2000, indicate that there is no realistic possibility of linkage to the north-west. Whilst the southern section of the NDR on the line recommended would involve an incursion into the gap between Sittingbourne and Bapchild, the crossing of a railway and the crossing of best and most versatile agricultural land close to environmentally sensitive areas, the engineering, land ownership and cost constraints are likely to be less serious than those with the section between the East Hall site and the MKDR.
18. Were it necessary to construct the road from the south-east it is recommended elsewhere that Stones Farm should be released as a housing site as would be 'reached' by the NDR prior to East Hall Farm and the Stones Farm development would be required to fund the further progress of the road. Bearing in mind the level of development required to finance the NDR and the restriction on the total amount of development that could be accepted in highway terms prior to the complete road being in place the likely effect of this would be to delay the completion of East Hall Farm (other than the initial 200 dwellings) beyond the Plan period.
19. Despite my doubts over the ability of the site to contribute more than 200 dwellings during the Plan period it is considered that the whole of the East Hall Farm site should remain allocated for housing. The Council accept that the development of the East Hall Farm housing site and associated employment site allocated in Policy B33(4) would not be sufficient to finance the entire road. In order to provide greater clarity and certainty with the overall proposal it is concluded that not only should the entire road route be shown on the Plan but also that the additional employment and housing sites required for its completion should be identified and protected."
"c. The rewording of paragraph 5.3.56 as follows:
5.3.36 Land is allocated for 550 units to be provided within the Plan period. A first phase of 200 dwellings to the south of East Hall is proposed to be completed in the period to 2001. Whilst the development will assist in the funding of the Northern Distributor Road (N D R) access to the first phase up to a maximum of 200 dwellings, may initially be via Castle Road. Further development shall be dependent on the provision of a section of NDR. Subject to paragraph 5.3 ** below this shall be the section of the NDR providing access from the north-west from the Milton and Kelmsley Distributor Road (MKDR).
d. The insertion of an additional paragraph after 5.3.56:
5.3.** As the access from the north-west via the NDR is dependent on the provision of the MKDR, which in turn is dependent on further developer funding, the situation will be reassessed in early 2000. If by April 2000 a contract has not been let for the section of the MKDR that would enable the NDR to be connected to the A249, access may be provided by means of the section of the NDR linking to the A2 to the south.
5.11.** Development is dependent on the construction of the Northern Distributor Road (NDR) which is shown on the Proposals Map. The allocations themselves should enable a substantial proportion of this important road to be constructed from the north-west during the Plan period. However, particularly in view of its reliance on the completion of the Milton and Kelmsley Distributor Road, the requirement that access be initially provided from the north-west rather from the A2 to the south-east will be reviewed in early 2000. If by April 2000 a contract has not been let for the section of the MKDR that would enable the NDR to be connected to the A249, access may be provided by means of the section of the NDR linking to the A2 to the south-east. In any event no permanent vehicular access to the sites will be accepted from existing residential roads in Murston, other than for public transport and emergency vehicles. Development briefs in accordance with an overall framework document will be required to guide development in this area. There are a number of specific issues that will need to be addressed;"
"3. Although the Stones Farm site comprises land of best and most versatile quality (over half Grade 1), it was recognised in the Consultative Draft Plan as having potential to contribute to the overall development and the view was taken that, with a development restricted to 200 dwellings, there would not be an unacceptable effect on the gap between Bapchild and Sittingbourne. The objector has now reverted to this reduced scheme and I would accept that, in view of the prevailing land quality around Sittingbourne and the importance of securing the overall North East Sittingbourne proposals, there would be exceptional circumstances to justify the release of this prime agricultural land.
4. It is concluded elsewhere that the whole of the NDR should be shown on the Proposals Map in order to provide greater clarity and consequently certainty in relation to the implementation of the overall strategy for the area. In addition, the delineation of the whole route would enable initial access to the allocated sites to be provided from the south-east in the event that it was not possible to provide the preferred access from the north-west during the Plan period. With the route recommended in 5.6.6 of the Report, development options would be limited to the Stones Farm site would represent a logical completion of the built-up area of Sittingbourne. Further expansion to the east would be constrained by the line of the new road.
5. With the preferred construction of the NDR from the north-west it is most unlikely that the section between the railway and the A2, upon which the development of Stones Farm would be dependent, would be in place during the Plan period. As long as the Plan seeks the construction of the road in this way it would be inappropriate to allocate this site.
6. There is however a serious danger that delay in the construction of the Milton and Kelmsley Distributor Road (MKDR) will make it impossible to construct the NDR from the north west during the Plan period. This would mean that the contribution from the strategic East Hall Farm site would be restricted to 200 dwellings, some 350 below its anticipated yield. Such a shortfall would have serious consequences in relation to housing land supply. The anticipated contribution from the East Hall Farm will have affected the Structure Plan housing allocation for Swale and replacement sites should not be sought if they would undermine the basic approach of the Plan or threaten progress on the major strategic sites. However, if it becomes clear by early 2000 that the MKDR will not be in place to enable the construction of the NDR from the desired direction, I am recommending that the construction of the NDR should be allowed from the south-east. This would enable the potential shortfall at East Hall Farm to be partially off-set by the earlier development of Stones Farm, which in any event would in all probability have formed a part of the overall North East Sittingbourne development. Stones Farm should therefore be identified as a reserve housing site but in line with the approach adopted elsewhere should at this stage be excluded from the built-up area boundary."
"3. Whilst the road is mentioned in the supporting text and the route is shown diagrammatically on Map 8. The Plan currently contains no specific policy in relation to the NDR and it is not shown on the Proposals Map. Although it is not envisaged that the complete road will be provided in the Plan period, major allocations at East Hall Farm are dependent for their completion on a significant proportion of the road being in place. Having regard to the guidance of PPG12 it is considered essential that the Plan should at least show the section of the NDR required to gain access to the allocations of the Plan. Also, in the interests of providing clarity and certainty in relation to the strategic development at North East Sittingbourne, which will extend beyond 2006, it is desirable that the whole route should be shown. This is a matter that was of particular concern to the County Council when the Certificate of Conformity with the Structure Plan was issued.
4. As it would ensure the provision of the most costly and difficult section of the road in engineering terms and would also provide the greater benefit in terms of initial traffic relief in the town centre, it is desirable that the road should be constructed from the north-west. With this scenario the delineation of the route of the road from its junction with the Milton and Kelmsley Distributor Road (MKDR) to the access point of the East Hall Farm site would at the very least be required if the Plan is to accord with national guidance. Although important matters such as the way the road will cross Milton Creek remain to be resolved, there is agreement between interested parties on the general alignment of this Section. Whilst it may not be a route that has formally been approved by highway authority there is no reason why the line as far as the access to East Hall Farm should not be shown on the Proposals Map.
5. However, construction of the NDR from the north-west is dependent on prior construction of the MKDR. Like the NDR the MKDR is to be primarily developer funded and the requirement for its provision would not be triggered until 140,000 sq m of industrial development at Ridham is in use. Whilst such a level of development may take place within a time frame which would allow the construction of the MKDR and the relevant section of the NDR to give access to the East Hall site within the plan period, there is a real risk that this will not be the case.
6. As well as the desirability of delineating the whole route in the interests of clarity and certainty, this would also identify the alternative access to the allocated sites at East Hall Farm from the south-east in the event that construction of the NDR from the north west could not proceed. Whilst not bringing the same community benefits, access from the south-east is likely to be easier to construct and the highway authority now accept that a housing development of the size of East Hall Farm could, in the short term, have access from the south only without unacceptable consequences for traffic in the town centre.
7. The Council's concern that construction from the south-east could jeopardise the completion of the road would, in my opinion, be largely addressed by the suggestion that developers contribute to a fund for the construction of the road at various phases in North East Sittingbourne are completed. This is a matter that could be addressed in a development brief and form the subject of an agreement or undertaking.
8. There is disagreement on the route of the southern section of the NDR between the Sittingbourne to Faversham railway and the A2. ... ...the Council currently favour a route that would join the A2 to the east of Bapchild because it would avoid the narrow gap between Sittingbourne and Bapchild and it would act as a by-pass of Bapchild. The Highway Authority and the joint developers of North East Sittingbourne favour a route that would join the A2 to the west of Bapchild.
9. The route to the east of Bapchild would involve a significantly greater length of road and I would question whether it could be reasonably justified as a pre-requisite for development at North East Sittingbourne. It would also involve land that is not in the control of the joint developers which would bring uncertainty to the overall project.
10. In addition, the eastern route would be likely to have a greater environmental impact and a greater impact on agricultural land. ...
11. The primary function of the NDR is to relieve Sittingbourne Town Centre and provide an alternative access to the existing and proposed development areas to the north east of Sittingbourne. With the route to the east of Bapchild through traffic, that would otherwise use the M2 to Brenley Corner, may be drawn on to the A2 which would increase the number of vehicles passing through the villages of Teynham and Ospringe. This would be contrary to one of the highway objectives of the Plan. A further very significant factor is the effectively increase in the journey between the new development and the facilities of the town centre that would result from the NDR joining the A2 to the east of Bapchild. This would be contrary to one of the fundamental aims of the Plan of providing sustainable forms of development.
12. There would clearly be an impact on the gap between Sittingbourne and Bapchild with the western route. However, subject to detailed alignment and appropriate landscaping, I am satisfied that the separation of the settlements could be maintained.
13. Despite the impact of a new junction on the gap between Bapchild and Sittingbourne and the loss of an opportunity to provide a by-pass for Bapchild, it is considered that the alignment shown on Travers Morgan's drawing 3B 43347/PI001C, joining the A2 to the west of Bapchild would, unlike that shown on Map 8 in the Plan, provide a realistic and attainable route for the southern section of the NDR. It would also have a less severe environmental impact and would result in a more sustainable form of development at North East Sittingbourne.
14. It is considered that the overall route of the NDR as indicated on drawing 3B 43347/PI001C should be shown on the Proposals Map and that a specific policy should be introduced into the Plan. The modifications process would enable the views of the public to be canvassed on the alignment. It is not accepted that such a fundamental matter should be left until the review of the Plan. Whilst the supporting text should make clear that the preference will be for construction of the road from the north-west it should make provision for a review of the situation, in say early 2000 and enable construction from the south-east if necessary."
"Final phasing and programming arrangements for construction of the Northern Distributor Road will therefore be subject to on-going monitoring and reviews in the context of progress towards implementation of key elements of the local plan strategy for housing and economic development. In particular the requirement that access to the housing and employment allocations should initially be via the section of the NDR linking to the MKDR will be reviewed in early 2000. If by April 2000 a contract has not been let for the section of the MKDR that would enable the NDR to be connected to the A249, access may be provided by means of the section of the NDR linking to the A2 to the south-east. Legal agreements to ensure the provision of the Northern Distributor Road will be sought from the developers of North East Sittingbourne."
"C. The Borough Council will require the preparation of development briefs, which accord with an overall framework document for North East Sittingbourne, to be submitted to and approved by the Borough prior to the granting of any planning permissions. The development briefs, together with the submissions of applications for development will consider:
(then as in the Draft Plan subject to:)
the addition of 'from the Milton and Kelmsley Distributor Road to the A2 west of Bapchild' to the end of (a);
the replacement of the 'the A2' at the end of (b) by 'the existing A2 (other than via the Northern Distributor) and the desirability of constructing the Northern Distributor Road to initially link with the Milton and Kelmsley Distributor Road;'
the addition of a reference to West Tonge Farm to (h) and;
the replacement of (k) and (l) by;
'the need to comply with policies B37, H66, R30 and the appropriate criteria in Policy G1.'
alteration of the Proposals Map to reflect the areas shown on Symonds Travers Morgan drawing 3B 43347/PI001C."
"30. The reserve site approach is not one that I am familiar with. PPG2, relating to Green Belt land, allows land to be safeguarded for consideration for development in the longer term, in order to avoid the necessity of reviewing the Green Belt boundary every time a Local Plan is reviewed. This is the nearest that Government guidance comes to the reserve site concept. However, even in Green Belts the approach is different, with the safeguarded sites only being considered in the context of a review of a Local Plan, not upon the arrival of specific 'trigger' dates during the current Local Plan period. Swale, however, has no Green Belt land, and PPG3 'housing' gives no support to the reserve site approach.
31. As a device for addressing potential land supply shortage it was not discussed in any detail at the Inquiry, and was only raised with the Borough Council in questioning from the Inspector. The Borough Council's response to this suggestion was one of concern, but this concern is not noted in the Inspector's Report. Furthermore, it is not known whether it is an approach that would be supported by the HBF in addressing potential land supply difficulties. Their position at the Inquiry was that there will be a potential land supply shortfall, and that this should be met by additional and immediate allocations in the Plan. This, though, is considered unnecessary by the Inspector.
32. The reserve site approach, therefore, appears to be the Inspector's own solution. He has given no indication of where it has been used before, or, indeed, if it has been used anywhere else before. Furthermore, he has not drawn upon Planning Policy Guidance to justify it. To help in my deliberations of this matter I have sought the views of the Kent Planning Policy Forum. From the discussion at the Forum it was clear that no other authority in Kent has had experience of the approach, and that it was one that should be treated with considerable caution. Two main concerns were expressed.
* the approach pre-empts the review of the Local Plan as sites so identified, although not allocated for development, are being accepted as suitable for housing development in principle. Therefore, whilst they may not need to be considered for development during the Local Plan period, if the allocation they are to replace proceeds, the authority will find it difficult not to allocate them in the next Local Plan. For the next review of the Local Plan, however, there will be new Structure Plan housing requirements flowing from the review of Regional Planning Guidance, and a review of the Structure Plan itself. In the light of new Regional Planning Guidance and a new Structure Plan, the reserve sites may not be the most appropriate for future development; and
* it could result in an over-provision of housing land during the Plan period as there is nothing to stop both the allocated sites and the reserve sites coming forward. Once the 'trigger' dates for release of the reserve sites are reached, the allocated sites are not removed from the Plan - they can still come forward. The strategy of the Structure Plan for the Borough is that new housing development should support, and keep pace with, new employment development to keep the two in balance. The reserve site approach, however, could result in a tilt in the balance towards housing development, which will lead to more commuting and travelling. This would not accord with the sustainable development principles of the Structure Plan and Government Planning Guidance.
33. In addition to these concerns, and of most importance, is that the sites being recommended are all greenfield sites - in total comprising about 46ha of land and entirely grades 1 and 2 agricultural land. At the present time, Government planning policy is continuing to fundamental shift away from greenfield development. ... This is likely to be reinforced in the soon to be published draft revised PPG3 'housing'. ... It is difficult to see how this fundamental reassessment can be undertaken, if the Borough Council has already committed itself to the development of 46ha of greenfield land.
34. Therefore, I consider that to introduce the concept of the reserve site into the Local Plan is unfounded in Government guidance, and will create serious problems both during this Local Plan period, and for when the Plan is reviewed, and I would recommend that Members do not accept the Inspector's recommendation in this regard. Later in this report I will consider in detail the Inspector's concerns with the specific allocations giving rise to the potential land supply shortage, and how I would prefer to deal with the issues raised. In general, however, my view is that the most appropriate way to deal with any potential land supply shortage is through an early review of the Local Plan."
"208. Discussion: In making these recommendations the Inspector has almost entirely supported the objections made to the Plan by Blue Circle Properties, and to a lesser extent those made by Alfred McAlpine Projects Ltd. He has concluded that the entire development likely to take place in North East Sittingbourne should be shown, and approached, in a comprehensive way now, even though the development will extend beyond the lifetime of this Local Plan, and possibly even the next one as well. The extent of the development he is proposing is shown in Plan 14.
209. The approach advocated by the Inspector causes me serious concern in a number of respects:
1. Strategy:The proposed development in North East Sittingbourne is the most complex in the Local Plan, involving many elements. It is also a strategic development stemming from the Thames Gateway Planning Framework (RPG9a) and the Kent Structure Plan. It is important, therefore, that it proceeds in accordance with a clearly defined strategy. The strategy advocated in the Local Plan is clear and unequivocal - development should proceed from the north west, linking with the strategic road network to the west of Sittingbourne. The strategy has been developed jointly by the Borough Council, County Planning Authority and the County Highway Authority as the most appropriate, and the one bringing the most benefit to the town as a whole. The Inspector too has also accepted that this is the best, and preferred approach. He comments:
'As it would ensure the provision of the most costly and difficult section of the road in engineering terms and would also provide the greater benefit in terms of initial traffic relief in the town centre, it is desirable that the road should be constructed from the north-west.'
However, the Inspector's recommended approach involves the complete abandonment of this strategy at a certain (arbitrary) point in time. By introducing the potential development of Stones Farm into the equation at this stage, he is totally undermining the agreed strategy for North East Sittingbourne, and introducing uncertainty into the development process. In particular, given that Stones Farm is in a different ownership, and the development could proceed independently of that to the north of the railway, there can be no guarantee that this development will ever be linked into the East Hall Farm area by the provision of a bridge over the railway.
2. Stones Farm: The Inspector considers that Stones Farm should be shown as a reserve housing site. This, he considers, would not only enable some of the potential housing shortfall at East Hall Farm to be dealt with, but would also enable some progress to be made with implementing the NDR, starting from the south.
Earlier in this report, when discussing the housing land supply situation (see pages 4-11) I have set out my concerns regarding the reserve site concept favoured by the Inspector, and I have recommended that it is not accepted in principle by the Borough Council.
Putting these concerns to one side, however, I also have other concerns about showing Stones Farm in the Local Plan at this stage. Firstly, as explained above, Stones Farm could only be developed during this Plan period if the strategy for development in North East Sittingbourne is changed. Secondly, Members will recall that at Consultative Draft stage, Stones Farm was allocated in the Plan with access directly on to the A2. This received significant objection from residents both at Bapchild and Murston. It also attracted objection from the Ministry of Agriculture. The north-west strategy promoted in the Deposit Plan was partly shaped by these earlier concerns raised to Stones Farm. The much lower level of objection to the Deposit Plan demonstrates that the approach advocated now in the Plan has much more support amongst local people. If Stones Farm were to be put back into the Plan now, significant objection can be anticipated, and there will be a real risk that a second Inquiry will be needed to address some of the issues raised.
3. Traffic Impact on the A2 and town centre: In promoting the development of Stones Farm with access from the A2, the Inspector concluded:
'Whilst not bringing the same community benefits, access from the south-east is likely to be easier to construct that the highway authority now accept that a housing development of the size of East Hall Farm could, in the short term, have access from the south only without unacceptable consequences for traffic in the town centre.'
This is somewhat of a sweeping statement by the Inspector, and does not accurately record the position of the Highway Authority at the Inquiry. In response to evidence submitted by the objector, the Highway Authority agreed that a southern access, linking from the A2, over the railway and connecting to Eurolink would 'provide a marginal benefit as compared to the base (do nothing) network in 2006'. However, they raised potential concerns with the junctions at St Michael's Road/Crown Quay Lane, Murston Road/Canterbury road and Mill Way/Eurolink Way, which would require more detailed consideration. The Highway Authority did not accept that the development of Stones Farm, with access on to the A2, and no crossing of the railway, would not have unacceptable consequences for traffic in the town centre, as suggested in the Inspector's conclusion. For the Inspector's conclusion to hold good, it will be necessary for the NDR to be provided from the A2, over the railway, and to link into Eurolink before any housing development takes place on Stones Farm. This, though, is not what the Inspector recommends, and I am fearful that if Stones Farm is allowed to proceed with access from the A2, the road may not proceed beyond the railway. This, undoubtedly, would have an impact on the A2 and the town centre, though the extent and scale of the likely impact would need to be assessed before such development is considered.
210. However, putting all these concerns to one side, the approach advocated by the Inspector in his recommendations only works if the NDR is shown on the Proposals Map. In this regard PPG12 'Development Plans and Regional Planning Guidance' advises that:
'5.35 Where planning authorities wish to safeguard land for particular road proposals, they should do so through a proposal in the local plan. When the precise route of a proposed new or improved road is known at the time of the preparation of the plan, this should be shown on the proposals map as a route to be safeguarded. When the precise route is not known, but where proposals are sufficiently advanced the authority may define on the proposals map the area of land over which it intends to apply a safeguarding policy. The use of diagrammatic lines to illustrate the route should not be used where it could be misleading. For the sake of clarity, plans should list any road schemes which have previously been safeguarded and are now to be abandoned.'
211. The potential to cause blight is also a consideration, and PPG13 'Transport' advises:
'5.7 Blight should be kept to a minimum by including in plans only firm schemes on which work will commence within the plan period. Local planning authorities should use the process of preparing or amending development plans to review transport proposals and remove the effects of blight where proposals are now unlikely to be taken forward by listing abandoned schemes.'
212. It is my view, and that of Counsel, that the NDR falls foul of PPG guidance, and therefore cannot be shown on the Proposals Map. Whilst the Inspector had before him the route being promoted by Blue Circle and Alfred McAlpine, which has been worked up in some detail, he did not have some other route options. Without consideration of other route options, it cannot be said that the route promoted by the objectors is either 'precise' or 'sufficiently advanced', and therefore fails to satisfy PPG12. Furthermore, I do not consider that the route that the Inspector had before him was supported by sufficiently detailed justification to enable him to come to a firm recommendation on the routing of the road.
213. Whilst the general route of the road to the north of the railway is largely agreed in principle by the Highway Authority, the Borough Council and the developers, the Inspector was made fully aware of the differences of opinion on the alignment of the road to the south of the railway, and that the route of the road promoted by the objectors could not be considered as agreed. He acknowledges this in his report by stating:
'With the NDR the precise line has not been agreed and the crossing of Milton Creek, which is a navigable waterway, and the impact on environmentally sensitive areas are likely to be controversial. Land acquisition could also present problems.' (Paragraph 17, page 51).
214. The Borough Council has consistently favoured a route for the NDR that also acts as a bypass for Bapchild, as clearly indicated on the Proposals Map at consultative draft stage, and on Map 8 in the Deposit Local Plan. Whilst, in general terms, the Inspector considered the possibility of the NDR joining to the A2 to the east of Bapchild, he did not have any route options before him.
215. Normally, before the route of a road as important as the NDR is shown on the Proposals Map of a Local Plan, there would have been a proper evaluation of all the route options, together with public consultation. Furthermore, in the case of the NDR which is to be entirely developer funded, route options would need to be considered in association with development options. The consideration of a range of development scenarios is not for the Local Plan, but should be part of the work feeding into the Local Plan. The Local Plan would then present the Borough Council's favoured position, to which formal representations for and against can be made. This is exactly the process that was envisaged for the land to the south of the railway, in the context of the review of the Local Plan.
216. The Inspector, however, has totally undermined this process of debate, by rejecting any route east of Bapchild. ...
217. He made these conclusions, however, without the benefit of any evidence as to how the concerns he has raised could be addressed. Similarly, he has accepted the route to the west of Bapchild without having the views of the residents of Bapchild (for example as in the letter circulated to Members from the Bapchild Parish Council, and contained in representations submitted to the Borough Council, which are summarised in Appendix C), and from Murston. The Parish Council has submitted a petition, signed by some 550 people, objecting to the Inspector's recommendation, and I understand that Councillor Jordan also has 40-50 letters raising objections.
218. In any event, and returning to the paragraph 5.35 of the PPG12 referred to above, guidance is that safeguarding land for road proposals can be considered by local planning authorities 'at the time of preparation of Plan'. This, and I have sought Counsel's advice, is the period leading up to the preparation of the Deposit Local Plan. Therefore, it is now too late in the Local Plan process to introduce this issue.
219. Symonds Group, on behalf of both Blue Circle and Alfred McAlpine have made a submission giving their views on how the development proposals for North East Sittingbourne should be progressed. The submission is summarised in Appendix C, and a full copy has been placed in the Members Room. ... "
"Development should proceed in accordance with a Development Framework to be prepared for the entire North East Sittingbourne Area, and a Development Brief to be prepared for the site, both of which are to be agreed by the Borough Council.
5.3.** ...it considers that if a shortfall arises, it is a matter for the Borough Council to monitor and manage during the Local Plan period, and to address through an early review of the Plan, to which it is committed. Furthermore, in the case of East Hall Farm, the Borough Council considers that should there be delay with related road infrastructure, development can proceed in a phased way with access initially being achieved using existing road infrastructure (see paragraphs 5.3.56-5.3.** of the Plan). In this way the potential land supply shortage arising from this site will be minimised.
5.3.56 Land is allocated for 550 units to be provided within the Plan period. A first phase of 200 dwellings to the south of East Hall is proposed to be completed in the period of 2001, with a further 350 by 2006. Development of the site should take place in association with the construction of the first phase of the Northern Distributor Road (NDR), involving its linkage to the Milton and Kelmsley Distributor Road (MKDR) and the crossing of Milton Creek, from which vehicular access to the development site will be achieved. However, the Borough Council acknowledges that potential delays with the construction of the MKDR, and difficulties in crossing the creek, may mean that progress with this part of the NDR may be delayed. In this eventually, the Borough Council will give consideration to the first phase of 200 houses being developed initially with access provided via Castle Road. Such consideration will be dependent upon the submission of a transport impact assessment, and the introduction of approximately improvements to the existing highway network, and other transport measures, considered appropriate by the Borough Council.
5.3.** If the first 200 dwellings proceed with access via Castle Road, and there has still been insufficient progress made with the MKDR to enable the NDR to link with it, the Borough Council will give consideration to further housing being allowed with access initially via Castle Road, up to the maximum allocated. This consideration will be dependent upon:
* progress made with the preparation of the Development Framework for the entire development in North East Sittingbourne;
* whether the review of the Local Plan is underway; and
* the submission of a further transport impact assessment, which may require further improvements to the existing highway network and the introduction of other transport initiatives.
5.3.** However, any development allowed with access via Castle Road would only be acceptable in the short term, as the main access to the site must be provided from the NDR. Therefore, if development of the site is allowed in advance of the construction of the first phase of the NDR, the Borough Council will seek a legal agreement securing payments from the development towards the cost of providing it.
5.6.23 It is anticipated that the proposed development at north-east Sittingbourne shown in the Local Plan will, during the Plan period, provide the new road from the north west as far as the East Hall Farm housing area. The remaining length of road will be provided outside the period covered by this Local Plan. However, given potential delays with the construction of the Milton and Kelmsley Distributor Road, and potential difficulties with the crossing of Milton Creek, the Local Plan makes provision for the employment and housing development proposed at East Hall Farm to proceed with access initially via the Eurolink Industrial estate (see paragraphs 5.2.18 and 5.3.56 - 5.3**). Given the complexity of the development proposals for North East Sittingbourne, and their relationship with the provision of the Northern Distributor Road, the Borough Council will prepare a Development Framework for the entire development. As explained in paragraph 5.6.22 above, this will consider route options for the road, and associated development opportunities. It will also seek to set out how the development proposals will be implemented, both during the beyond the current Plan period, and will provide a key input to the review of the Local Plan.
5.11.15In order to maximum this development potential, the Borough Council has allocated land to the rear of the football ground for economic development, and land at East Hall Farm for 550 dwellings. Development is linked to the construction of the Northern Distributor Road (NDR), proceeding from the north west...
5.11.**Ideally, there should be no development until sufficient length of the NDR has been provided, and the Borough Council will seek to ensure this. However, given the potential delays with the construction of the Milton and Kelmsley Distributor Road, to which the NDR would link, and difficulties in crossing Milton Creek, this may not be possible. In this eventuality, the Borough Council will give consideration to a first phase of 200 houses and the whole of the employment allocation being developed initially with access provided via Castle Road. Such consideration will be dependent upon the submission of a transport impact assessment, and the introduction of appropriate improvements to the existing highway network, and other transport measures, considered appropriate by the Borough Council.
5.11.**If the first 200 dwellings proceed access via Castle Road, and there has still been insufficient progress made with the MKDR to enable the NDR to link with it, the Borough Council will give consideration to further housing being allowed with access initially via Castle Road, up to the maximum allocated, as explained in paragraph 5.3.** of the Plan.
5.11.**However, any development allowed with access via Castle Road would only be acceptable in the short term, as the main access to the site must be provided from the NDR. Therefore, if development of the site is allowed in advance of the construction of the first part of the NDR (ie from the MKDR, across the creek and into the East Hall Farm development area), the Borough council will seek a legal agreement securing a contribution from the development towards the cost of providing this part of the NDR.
5.11.**Given the complex relationship between the development areas and the provision of the NDR, and that further development in the area will be required beyond the lifetime of this Local Plan to secure the entire NDR, the Borough Council will prepare a Development Framework document for the North East Sittingbourne Area. This will set out in more detail than in the Local Plan how the development will proceed in a comprehensive fashion. As the NDR will ultimately link with the A2, the Development Framework will consider options for the routing of the NDR, particularly to the south of the railway, and associated development opportunities (in addition to those promoted in this Local Plan) which will be required to fund the construction of the entire road. The Development Framework will be subject to public consultation before the Borough Council decides on the route of the NDR and associated further development proposals to be included in the Local Plan when it reviewed.
5.11.**In addition to the Development Framework, which will provide overall guidance on the approach the development in North East Sittingbourne as a whole, a Development Brief will need to be prepared for each of the individual development sites. There are a number of specific issues that will need to be addressed in Development briefs to be prepared."
"6. GOSE consider that the adoption of an up-to-date Borough-wide local plan for Swale is well overdue. Further delay could only be justified if the changes needed to the draft deposit plan are fundamental and go to the heart of the plan and that it would not be reasonable to proceed with the plan in its existing substantive form. On the evidence at hand with regard to the Swale Borough Local Plan GOSE does not believe this to be the case. A review at this stage would be detrimental in the delay of revised plan policies relating to all other planning policy guidance in addition to that relating to PPG3. Conditional upon Swale Council undertaking the immediate and speedy review to which they are committed, to bring plan policies fully into line with PPG3, GOSE does not consider that on balance it would be appropriate for the Council to undertake a pre-adoption review of the plan at this stage and thereby significantly delay its adoption.
7. In order to ensure that a focused and rapid post adoption review is undertaken expeditiously, I am requesting Swale Borough Council to provide GOSE with a programme containing target dates for the early completion of the review and for the alteration or replacement of the plan to bring it fully into line with PPG3 following the plan's adoption."
"The identification of this strategic opportunity was influential in setting the housing figures for Sittingbourne and the total housing requirement for the Borough which is set significantly above the levels based on trend growth rates and locally generated household growth. A departure from the strategy involving the development of other greenfield sites would not bring the same benefits, would prejudice the prospects for implementing the Structure and Local plan Strategy, the principle of which has been endorsed through the development plan process. I am firmly of the view that it would be inappropriate to depart from the original strategy for North East Sittingbourne without properly revisiting the proposals as part of future reviews of the Structure Plan and Local Plan. In this respect I welcome the Borough Council's suggestion that further development opportunities in North East Sittingbourne, in addition to those allocated in this Local Plan, should be considered comprehensively alongside route options for the NDR as part of the preparation of a Development Framework for the area. In the light of the above I recommend that no objection be raised to the Borough Council's response to the proposals regarding housing provision in the Sittingbourne area."
"If the Council decide not to accept the Inspector's recommendations it is appropriate and inevitable that these matters should be properly tested and considered in the forum of a reopened Local Inquiry."
"55. ...it is appropriate to give a general response here given the importance of the NE Sittingbourne development proposals to overall strategy of the Plan. This, for the Stones Farm reserve housing site, has already been covered in the previous section of this report, but in general I do not consider that the submissions made present any additional information and arguments to persuade me that further modifications should be made to the Plan to reflect all of the Inspector's recommended changes to the Plan, and that the strategy for developing NE Sittingbourne should be changed. My view remains as reported to Members in April 1999, and the Borough Council's position is supported fully by the County Planning Authority and the Highway Authority. Furthermore, no objection from GOSE has been made on the implementation of this key development.
56. Through the Modifications to the Plan already agreed, the Borough Council and the Highway Authority have shown considerable flexibility on this issue by accepting that significant scales of development at East Hall Farm can occur in advance of the provision of any part of the NDR, with access provided from the existing highway network. Whilst this may not be the ideal way forward, it does allow development to proceed before major new infrastructure provision needs to be made. The Borough Council's approach also allows for consideration of all the options for development in NE Sittingbourne, together with alternative alignments for the NDR, through the preparation of a development framework - in advance of the review of the Local Plan. I remain firmly of the view that all the possible route options for the NDR need to be examined to the same degree of detail, and be subjected to public consultation, before a definitive route can be shown on the Local Plan Proposals Map. As the road is to be developer funded, it is necessary that this examination of route options is undertaken in parallel with an assessment of longer-term development opportunities. The proposed development framework for NE Sittingbourne will enable this assessment to be undertaken.
57. With regard to the comment from the agents for Alfred McAlpine Developments Ltd that it is 'appropriate and inevitable' that the Inquiry be re-opened if the Council decide not to accept the Inspector's Recommendations, I do not agree that this is so. The Inspector's recommendations are not binding on the Borough Council, and it is for the Borough Council to decide whether to accept them or not, and to present a cogent planning argument if it does not accept a recommendation. In the case of NE Sittingbourne, the Borough Council has not accepted all of the Inspector's recommendations, but it has been explained quite clearly why it has done this. As explained above, the Borough Council's position has been supported fully by the County Council, and no objection has been made by GOSE. If the objector considers that the Borough Council has not followed the correct procedures (and I consider that we have), then they can make appropriate representations to the Secretary of State."
"18.-- (1) subject to paragraph (7), a local planning authority proposing to modify proposals for a statutory plan or for the alteration or replacement of a statutory plan (whether to comply with a direction given by the Secretary of State or on their own initiative) shall, unless they are satisfied that the modifications they intend to make will not materially affect the content of the proposals --
(a) prepare a list of the modifications with their reasons for proposing them;
(b) make copies of that list available for inspection at any place at which the plan proposals have been made available for inspection;
(c) give notice by local advertisement in Form 4; and
(d) serve a notice in similar form on any person who has objected to, or made a representation in respect of, the plan proposals in accordance with these regulations and not withdrawn the objection or representation [and on such other persons as the authority think fit].
(2) The period within which objections and representations may be made to the local planning authority in respect of proposed modifications in six weeks beginning with the date on which a notice given pursuant to paragraph (1) is first published in a local newspaper.
(3) Objections and representations shall be made in writing and addressed in accordance with the details given in the notice.
(6) Where objections have been made to proposed modifications in accordance with this regulation and not withdrawn and the local planning authority do not cause a local inquiry or other hearing or examination in public to be held, regulation 17 shall apply to consideration of the objections as it applies to the consideration of objections in statutory plan proposals."
"I do not consider that the Stirk case is authority for the proposition that a council is never entitled merely to repeat its previous statement of a pure value judgment when an Inspector disagrees with that value judgment. If the only issue is, for instance, whether a field and the trees thereon contribute significantly to the beauty of an area, no further elaboration is required...
Mr Christopher Lockhart-Mummery QC, sitting as a Deputy High Court Judge [said]:
'The County Council found that it would be "inappropriate" development in the countryside and in an area of great landscape value. Again, the point is, in the context in which it arises in this case, capable of little elaboration. It is manifestly a subjective judgment capable, as I say, of little compensation or elaboration. In my judgment, bearing in mind the specific terms of Policy DLPEN 1 (in relation to this area of great landscape value) a finding that this constituted inappropriate development amounted to adequate reason for differing from the Local Plan Inspector's conclusion.'
For my part, I find no error of law in this conclusion by the judge, and indeed I agree with it. All these reasons cases turn on their own facts, and I see no advantage in further analysis of further cases on either side of the line. In my judgment, in the present case, where none of the special factors set out in the two cases which I have mentioned were present and where the issue in essence was one of value judgment, I do not consider that more was required by way of reasons than the council gave. Indeed, on analysis, as Mr Drabble has fairly pointed out, the lack of elaboration of the council for its reasons is no greater than the lack of elaboration by the Inspector for coming to the opposite conclusion.
This is not a case where the appellants have persuaded me that they do not understand why the local planning authority came to a different conclusion from the Inspector. A careful look at his reasoning reveals no more than a description of the site and a series of value judgments. Nothing of substance would have been gained by the landowners if there had been an addition of more words to express the council's value judgment."
"Provided the Council's reasons show that it has genuinely considered the Inspector's findings it is, in my judgment, entitled to reaffirm it adherence to an argument which is advanced at the local plan inquiry and which was rejected by the Inspector. The more 'factual' the Inspector's conclusion the more may be required by way of reasoned justification. But I do not see why a local planning authority is not entitled to say, for example, 'the Inspector concluded that the site was not visible from point X and, therefore, rejected the Council's concerns as to its landscape impact. The Council has revisited point X and is satisfied, contrary to the Inspector's finding, that the site is indeed visible and it therefore adheres to its previously expressed landscape objection.'
There is no rule that the local planning authority is unable to disagree with an Inspector's findings of 'primary fact' and adhere to views earlier expressed. The underlying rule which emerges from all of the authorities cited above is that the reasons must demonstrate that the local planning authority has grappled with the reasoning underlying the Inspector's recommendation. That rule accurately reflects the different functions of the Inspector and the local planning authority in the Local Plan System: enquires and recommends, the latter decides in the light of the inquiry and recommendations."
The Reasons Challenge
"224. Given this, I consider that the most appropriate way to progress the North East Sittingbourne development proposals is as follows:
* amend the Plan to explain that:
* options for the alignment of the NDR, particularly to the south of the railway;
* future development possibilities (including the remainder of East Hall Farm, land to the south of the 'three lakes', and south of the railway);
* alternative transport options; and,
will be the subject of public consultation through the preparation of the Development Framework. The Development Framework to be prepared as soon as possible after the Local plan is adopted, but in sufficient time to allow the preferred road alignment and development options post 2006 to be included in the first review of the Local Plan."
Failure to hold a further inquiry
"1. One of the matters which the LPA has to consider when deciding whether or no to open an inquiry to consider objections to proposed modifications is whether a decision not to do so will be unfair to the counter-objectors. If it fails to consider the point or comes to a perverse conclusion then its decision is liable to be struck down.
2. For its part, the court in deciding whether or not the decision not to open a new inquiry was procedurally fair, needs to bear in mind the position not merely of the parties before the court but also all others who might be affected by an order of the court quashing the adoption of the plan.
3. The Court In coming to a conclusion as to whether a decision not to open a new inquiry was procedurally unfair must give weight to the LPA's 'view of the general situation' to quote words of Lord Donaldson of Lymington MR in the Guinness case cited above at p. 178. The court will 'give great weight to the tribunal's own view of what is fair, and will not lightly decide that a tribunal has adopted a procedure which is unfair', to quote words of Lloyd LJ from the same case at p. 184."
"[Counsel] submitted that a second inquiry could only be justified where the objections to the proposed modifications raised a new planning issue of substance, which by its nature required the independent scrutiny of a further local inquiry and which could not reasonably be viewed as being suitable for consideration by written representations. No such new planning issue or matter was raised by the objections submitted to the Appellants. In particular:
1. No new strategy was identified for dealing with the requirement for Airport related housing;
2. No new sites were identified;
3. No new planning topic was raised;
4. No new expert evidence was advanced or referred to raising issues not addressed previously.
He submitted that there must be new planning issues or material of substance otherwise the new inquiry would be expensive and repetitious to no substantial gain."
"Considerations that would generally be material to that decision would include:
(1) whether or not the issue raised had been previously subject to independent scrutiny by an Inspector so as to provide independent evaluation of the opposing contentions;
(2) the current advice in paragraph 69 of annex A to PPG 12;
(3) the practical implications of a second inquiry and, in particular, whether it should potentially be of material benefit to the decision-making process;
(4) delay and the desirability of securing an up-to-date adopted development plan; and
(5) fairness to the objector and to other parties; as with all decisions of this kind, the determination whether or not to hold a further inquiry should seek to achieve fairness, balancing the interests of all relevant parties; however, in the light of the Court of Appeal decision in Warren it is not appropriate in the context of a challenge to a decision whether or not to hold a new inquiry to elevate the consideration of fairness to an administrative law obligation that goes beyond the usual Wednesbury principles."
"If the Council's concern (which is not accepted) is that reserve sites were not fully debated as an issue, then they have an opportunity to reopen the local inquiry."
"There is no change in circumstances since the Local Plan Inquiry that justifies ignoring the Inspector's recommendation. The issue of the NDR route between Milton Creek and the A2 was considered in full at the Local Plan Inquiry. If route options for the NDR link route to the A2 are judged by the Local Authority to require further investigation, the Council have the opportunity to reopen the Local Inquiry to consider this issue and to allow further consultation."
THE HUMAN RIGHTS ACT
"6. Acts of public authorities
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right ...
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may --
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings ...
(6) In subsection (1)(b) 'legal proceedings' includes --
(a) proceedings brought by or at the instigation of a public authority; and
(b) an appeal against the decision of a court or tribunal.
Section 22(4) provides that:
... paragraph (b) of subsection (1) of Section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section."
Civil rights and their determination
"In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time, by an independent and impartial tribunal, established by law."
"148 The scope of article 6 accordingly extends to administrative determinations as well a judicial determinations. But, putting aside criminal proceedings with which we are not here concerned, the article also requires that the determination should be of a person's civil rights and obligations. ...
It relates to rights and obligations 'which can be said, at least on arguable grounds, to be reconsidered under domestic law: James v United Kingdom (1986) 8 EHRR 123, para 81. The rights with which the present appeals are concerned are the rights of property which are affected by development or acquisition. Those clearly fall within the scope of 'civil rights'. But there is no issue about the existence of these rights and no determination of the rights in any strict sense is raised.
149 The opening words of article 6(1) are: 'In the determination of his civil rights and obligations or of any criminal charge against him ... ' Here again a broad interpretation is called for. The decision need not formally be a decision on the rights. Article 6 will still apply if the effect of the decision is directly to affect civil rights and obligations. In Le Compte, Van Leuven and De Meyere 4 EHRR I, para 46 the court observed: 'it must be shown that the 'contestation' (dispute) related to 'civil rights and obligations', in other words that the 'result of the proceedings' was 'decisive' for such a right.' The dispute may relate to the existence of a right, and the scope or manner in which it may be exercised (Le Compte, at para 49, also Balmer-Schafroth v Switzerland (1997) 25 EHRR 498. But it must have a direct effect of deciding rights or obligations."
"^ Where, in making any determination under the Planning Act, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."
"1. It will frequently be the case in relation to a particular development proposal that several economic, environmental, social or other factors need to be taken into account. This requires a framework which promotes consistent, predictable and prompt decision making.
2. At the heart of this framework are development plans which aim to give a measure of certainty and predictability to the system.
39. In all cases where the development plan is relevant it will be necessary to decide whether the proposal is in accordance with the plan and then take into account other material considerations.
41. The objectives of the plan led system can be summarised as: ensuring rational and consistent decisions, achieving greater certainty, securing public involvement in shaping local planning policies ..., reducing the number of misconceived planning applications and appeals. Because of the role of the development plan in determining the future location of development, it is important that anyone with an interest in the future pattern of development in the plan area shall participate in its preparation and help to influence his emerging policies. Anyone has the right to object to plan proposals prior to their adoption or approval."
"The zoning of any particular area as a green belt sterilises that area, except for the limited category of purposes listed in para 5 of Circular 42/55. It therefore provides a kind of planning blight and must be an exception to PPG1 para 15, the area of which should not be extended unless it is necessary for the purposes of the green belt as defined in PPG2.
As it directly prejudices landowners in the otherwise property development of their land an extension to the green belt should not be brought into effect unless it can be justified directly by those purposes for which the green belt is designed. There must therefore be an inhibition in extending a green belt so as to avoid sterilising unnecessarily neighbouring land..."
"The court has not simply said, as I have suggested one might say in English law, that one can have a 'civil right' to a lawful decision by an administrator. Instead, the court has accepted that 'civil rights' mean only rights in private law and has applied article 6(1) to administrative decisions on the ground that they can determine or affect rights in private law."
"69. In view of the wide discretion left by the Swedish Parliament to the administrative authorities in these matters, the Government further maintained that the applicant could not claim any 'right' to build before a permit had been granted.
The Court considers however that, subject to meeting the requirements laid down in the 1947 Act and the 1959 Ordinance, he could arguably have claimed a 'right' to such a permit. True, the issue of a permit under these circumstances would have involved the exercise of a certain discretion by the authorities, but their discretion would not have been unfettered: they would have been bound by generally recognised legal and administrative principles.
70. Pointing out that the prohibitions at issue affected the rights of a great number of other property owners, the Government alleged that the dispute in the applicant's case thus came to have connections with his 'right' to build that were so remote and tenuous as to make Article 6 inapplicable.
There can, however, be no doubt that the prohibitions severely restricted the said 'right' and that the outcome of the proceedings whereby he challenged their lawfulness was directly decisive for this exercise thereof.
71. There was thus, as was also maintained by the Delegate of the Commission, a dispute over a 'right'."
"46. The Court is not persuaded by this reasoning. In the first place, there existed a dispute concerning the lawfulness of the designation order. In the second place, the legal consequences of the designation order were that the applicant was no longer free to cultivate his land as he saw fit and was required to seek an authorisation from the Minister for various purposes, for example if he sought to alter or intensify existing use or carry out certain farming activities such as clearing or ploughing the land or using herbicides. The extent to which he was restricted in his use of his land can be seen from the subsequent disputes that he had with the Minister concerning work that he had carried out or proposed to carry out. There thus existed a serious dispute in the present case concerning the resultant restrictions on the applicant's use of his property. ...
47. The Government also pleaded, in the alternative, that there was no right of a'civil' character at issue.
48. However, in the light of the Court's case law there can be no doubt that the property right in question was 'civil' in nature within the meaning of Article 6(1)."
" 26.In the above court proceedings the applicant attempted to prevent construction on land adjoining her property by claiming - before the Constitutional Court - that the planning consents relating to two of the houses interfered with her constitutional rights and that they applied unlawful norms. The Constitutional Court, after norm control proceedings to review the area zoning plan and the building plan at issue, rejected the applicant's constitutional complaints. Before the Administrative Court she made public law objections that he subjective rights had been affected. In particular, she alleged that the noise which would affect her property as a result of traffic movements along the proposed private drive (which ran immediately next to the applicant's property) would constitute a 'considerable nuisance'.
27. The applicant submits that Article 6(1) of the Convention applies.
28. The Government submit that Article 6(1) of the Convention is not applicable to these proceedings. The sole link between the proceedings and any property rights of the applicant was the public law interest which she was able to put forward in the proceedings."
"... Although the programme does not in itself prevent the granting of a building permit, an activity prohibition issued by a County Administrative Board (laaninhallitus, lansstyrelse) prevents the implementation of a construction project for which a permit has already been granted. ... Whilst the adoption of the programme has not [as such] entailed the entry into force of a prohibition on building or construction, it has resulted in a de facto expropriation threat which forces the property owner not to make use of his property in a manner contrary to the programme. At the same time it gives the County Administrative Board the right to issue an activity prohibition pursuant to section 18 of the [the 1923 Act] in order to secure the aim of the redemption.
... The programme is not such a national plan of higher rank or other plan as would have a binding impact on regional, general or other planning. The programme can guide the planning as a document of reference on the basis of which [the authorities] attempt, in pursuant of... the  Building Act [rakennuslaki 370/58, byggnadslag 370/58; hereinafter 'the 1958 Act'], to harmonise regional and general planning with national planning within the framework of State supervision. For these reasons ... the decision of the Council of State is not unlawful as being incompatible with the planning system set out in the [the 1958 Act].
The effects ... on construction and forestry are not of such immediate nature that they would follow in a legally binding manner directly from the decision of the Council of State. The immediate legal effects are caused only by [subsequent] planning and building prohibitions for planning purposes, by decisions made in accordance with [the 1923 Act] on request by an individual property owner or, if the property owner acts in a manner contrary to the aims of the programme, by prohibitions and redemption decisions issued in accordance with [the 1923 Act]. In all these stages of implementation of the programme the parties are to be heard in accordance with legal provisions, the decisions are to be made in a procedure... prescribed by law and the decisions are appealable. When compulsory measures are resorted to pursuant to [the 1923 Act] the property owners and others who suffer damages shall be entitled to full compensation for the losses. Those seeking voluntary conservation may on request be granted compensation for the restriction of their right of usufruct to the land remaining in their possession."
"- that the threat of expropriation following from the adoption of a nature conservation programme as well as possible building and activity prohibitions are likely to result in the absence of other buyers than the State, thus negatively affecting the property owner's position in the negotiations concerning the price of his property;
- that the programme has not entailed the transfer of any property by rights; but
- that it has resulted in a de facto expropriation threat forcing the property owners and others concerned to abstain from using their properties in a manner contrary to the programme, thus creating de facto restrictions on their right to use their properties."
"2. The applicants further complain that their right peacefully to enjoy their possessions has been violated in several respects as a result of the adoption of the shore conservation programme.
Moreover, already the publication of the draft shore conservation programme had the immediate effect of restricting the applicants' use of their properties for an indefinite period of time, thus causing the financial losses, but without their receiving any compensation. The restrictions were partly based on the allegedly unlawful amendments to the 1959 Decree which entered into force on 1 June 1990. In particular the properties are now impossible to sell except to the State which may therefore 'dictate' the conditions. In the above circumstances the ownership of the applicants' properties has become so precarious that the properties have been de facto expropriated by the State. The applicants invoke Article 1 of Protocol No 1.
3. The applicants furthermore complain that the expropriation threat imposed on them amounts to an unlawful criminalisation of the use of their properties. They point out that already the lodging of a request for a building permit could entail the expropriation of their properties. In this respect they invoked Article 7 of the Convention. "
"The Commission therefore concludes that in the particular circumstances of the present case the dispute at issue was not directly decisive for the applicants' 'civil rights'."
"Thus, the Court cannot but conclude that in reality the dispute concerned the designation of the parcels in the area zoning plan and the objectives mentioned in the Vorarlberg Planning Act.
The Court notes that the Austrian Government, in their observations, referred to Application No 26794/95 (Schertler v Austria, Dec 4.9.1996), and finds that the facts and legal issues involved in that case and the present application are essentially the same. In its decision [on that case], the European Commission of Human Rights found that there was no genuine and serious dispute over a right of the applicant, as he had no right to have his land partitioned contrary to the existing area zoning plan nor did he have a right to have the area zoning plan amended to change the designation of his land. The Court sees no reason to reach a different conclusion in the present case. Since the relevant provisions did not grant a right to build on agricultural land or to have the agricultural designation of that land changed in the zoning plan, the Court cannot find the land partition proceedings at issue involved a determination of the applicant's civil rights within the meaning of Article 6(1) of the Convention."
"... the Constitutional Court refused to deal with the applicant's complaint. It found that in view of its constant case-law according to which there was no subjective right of the owner of land to have the use of his land marked in the Area Zoning Plan amended upon his request, the complaint had no prospect of success.
... the legislator was free whether or not to amend an Area Zoning Plan even if all legal requirements for a specific designation of a parcel of land were met. Moreover, it observed that the mere wish of the owner of land to have the designation of his land in the Area Zoning Plan amended was not even a sufficient reason under regional planning laws to justify the amendment of an Area Zoning Plan."
"The Commission recalls that it has previously held that a decision rejecting a request for amendment of an existing building plan does not involve a determination of civil rights. (See No. 11844/45, Dec. 29.2.88, DR 55, p. 205; No. 20326/92, Dec. 2.9.94, unpublished. The Commission has also held that a dispute about an owner's use of land for purposes other than those listed in the relevant rules does not determine the owner's civil rights, but concerns the application of public law regulations to the permitted use of land (see No. 10471/83, Dec. 9.12.85, DR 45, p. 113).
From the above case-law it follows that civil rights within the meaning of Article 6 (Art 6) of the Convention were involved where the applicants had had, or could arguably be said to have had, rights recognised under domestic law which were revoked or denied by the decisions of the administrative authorities (see No. 20326/92, Dec. 2.9.94, unpublished). In the present case, however, the applicant had no right to build on his property as, according to the Area Zoning Plan which had been issued in 1976, this land was designated as agricultural land. The refusal of the Austrian authorities to amend the Area Zoning Plan as requested by the applicant did not change this situation. The Commission further notes that according to the decisions of the Constitutional Court and the Administrative Court in the applicant's case the regional planning laws did not recognise a right for the individual to have an Area Zoning Plan amended."
"As regards the question whether the dispute related to the above-mentioned right, the court considers that a tenuous connection or remote consequences do not suffice for article 6(1) in either of its official versions ('contestation sur'; 'determination of'): civil rights and obligations must be the object - or one of the objects - of the 'contestation' (dispute); the result of the proceedings must be directly decisive for such a right."
" Turning to the Alconbury appeals, it could be seen that the House of Lords had considered, as a matter of principle, whether the planning or other statutory procedures in question entailed an incompatibility with Article 6(1). Bryan had established, where there was a delegated decision by a Reporter, that there was no such inherent incompatibility. And the Alconbury appeals had established that the fact that the decision was being made by a Minister did not produce a different result. The decision flowed from the nature of the administrative process and not from any particular matter of detail. That being so, this case was not distinguishable. Counsel of course referred us to particular passages in the speeches of their Lordships in the Alconbury appeals, but we do not see it as necessary or inappropriate for us to analyse or reformulate or gloss what their Lordships said.
 We are satisfied that what was said in the Alconbury appeals did not relate merely to the specific facts and procedures which were under scrutiny in those cases. The crucial questions are issues of principle. We are satisfied that even upon the basis that there is contestation at the administrative stage, the nature of the administrative and ministerial responsibilities and functions lies at the heart of any assessment of what is required in terms of Article 6(1). The distinctions drawn between the present case and what was in issue in the Alconbury appeals do not, in our opinion, make this case distinguishable in principle. We are satisfied that, in accordance with the principles identified in those appeals, it cannot be said that there is any inevitable incompatibility with Article 6(1) in the Scottish Ministers' decision to determine the petitioner' application for listed building consent, or in the appointment of a Reporter. The powers of the court to deal with genuinely justiciable issues arising in the administrative procedures are sufficient to ensure compatibility."
"28. Looking at the overall tenor of the speeches in Alconbury and the underlying decisions of the Strasbourg court, however, I accept that the finding that the Secretary of State's decision-making process was compatible in principle with article 6 was based to a significant extent on the fact-finding role of the inspector and its attendant procedural safeguards. By contrast, there is no equivalent in the decision-making process of a local planning authority. That process includes a right to make representations and to submit evidence, and persons may be heard orally at a meeting of the relevant committee. But there is nothing like a public inquiry, no opportunities for cross-examination and no formal procedure for evaluating the evidence and making findings of fact. The report of the planning officer to the committee generally contains an exposition of relevant facts, including any areas of factual dispute, but does not serve the same function as an inspector's report. In general there will be no express findings of fact by the committee itself. All of this considerably reduces the scope for effective scrutiny of the planning decision on an application for judicial review. It makes it more difficult, if not impossible, to determine whether the decision has been based on a misunderstanding or ignorance of an established and relevant fact, or has been based on a view of the facts that was not reasonably open on the evidence.
29. For those reasons there is in my view a real possibility that, in concern circumstances involving disputed issues of fact, a decision of a local planning authority which is not itself an independent and impartial tribunal might not be subject to sufficient control by the court to ensure compliance with article 6 overall."
"117 If, therefore, the question is one of policy or expediency, the 'safeguards' are irrelevant. No one expects the inspector to be independent or impartial in applying the Secretary of State's policy and this was the reason why the court said that he was not for all purposes an independent or impartial tribunal. In this respect his position is no different from that of the Secretary of State himself. The reason why judicial review is sufficient in both cases to satisfy article 6 has nothing to do with the 'safeguards' but depends on the Zumtobel principle of respect for the decision of an administrative authority on questions of expediency. It is only when one comes to findings of fact, or the evaluation of facts, such as arise on the question of whether there has been a breach of planning control, that the safeguards are essential for the acceptance of a limited review of fact by the appellate tribunal.
128 The second strand concerns the facts. These are found by the inspector and must be accepted by the Secretary of State unless he has first notified the parties and given them an opportunity to make representations in accordance with the rule 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000. This is the point upon which, in my opinion, the Bryan case 21 EHRR 342 is authority for saying that the independent position of the inspector, together with the control of the fairness of the fact-finding procedure by the court in judicial review, is sufficient to satisfy the requirements of article 6.
129 Finally, the third strand is that of planning judgment. In this area the principle of the Zumtobel case 17 EHRR 116, as applied in ISKCON and Bryan cases to questions of policy, does not require that the court should be able to substitute its decision for that of the administrative authority. Such a requirement would in my opinion not only be contrary to the jurisprudence of the European court but would also be profoundly undemocratic. The Human Rights Act 1998 was no doubt intended to strengthen rule of law but not to inaugurate the rule of lawyers."
"189 Whilst there is some weight in these submissions I do not think that they are of sufficient force to distinguish Bryan from the instant case. It is clear from para 47 of the judgment that it was in relation to fact finding that the European court referred to the safeguards attaching to the procedure before the inspector, and I consider that the second strand of the court's reasoning was the more important one. Moreover, the judgment cannot be viewed in isolation but must be considered in the light of other opinions of the Commission and judgments of the European court. I consider that the Strasbourg jurisprudence recognises that, where an administrative decision to be taken in the public interest constitutes a determination of a civil right within the meaning of article 6(1), a review of the decision by a court is sufficient to comply with article 6(1) notwithstanding that the review does not extend to the merits of the decision. Because it is a common feature of the judicial systems of a democratic member states of the Council of Europe that a court does not decide whether an administrative decision was well founded in substance, the Commission and the European court have held that article 6(1) does not guarantee a right to a full review by a court on the merits of every administrative decision affecting private rights, but that there is compliance with the article where there is a right to judicial review of such a decision of the nature exercised by the High Court in England."
"The adoption of planning policy and its application to particular facts is quite different from the judicial function. It is for elected Members of Parliament and ministers to decide what are the objectives of planning policy, objectives which may be of national, environmental, social or political significance and for these objectives to be set out in legislation, primary and secondary, in ministerial directions and in planning policy guidelines. Local authorities, inspectors and the Secretary of State are all required to have regard to policy in taking particular planning decisions and it is easy to overstate the difference between the application of a policy in decisions taken by the Secretary of State and his inspector. As to the making of policy, Wade & Forsyth, Administrative Law, 8th ed (2000), p 464 says:
'It is self-evident that ministerial or departmental policy cannot be regarded as disqualifying bias. One of the commonest administrative mechanisms is to give a minister power to make or confirm an order after hearing objections to it. The procedure for the hearing of objections is subject to the rules of natural justice in so far as they require a fair hearing and fair procedure generally. But the minister's decision cannot be impugned on the ground that he had advocated the scheme or that he is known to support it as a matter of policy. The whole object of putting the power into his hands is that he may exercise it according to government policy.'
As Mr Gregory Jones put it pithily in argument it is not right to say that a policy maker cannot be a decision maker or that the final decision maker cannot be a democratically elected person or body."
Interpretation and compatibility
"103.... Mr Hockman QC for HB, submitted that... Section 77 could be read even to the extent that the SSETR could never call in.
104. We do not accept these submissions. ... We do not think it is legitimate to read down a legislative provision so as to extinguish it. ....
105. It is argued that the position is different for recovered appeals. ... These provisions can be given effect in a way which is compatible with Article 6 by not exercising the power to recover. The fact that this does away with the power to recover and converts the power to delegate into a duty to do so is irrelevant. A public authority does not fail to give effect to a statute if it invariably uses one of two powers conferred on it, if that is the only way of achieving compatibility with the Convention.
106. ... we think that section 6(2)(b) does apply for the same reasons that it applies to Section 77. In other words this provision cannot be given effect in a way which is compatible with Article 6. On balance we prefer the latter view. Looking at the matter more generally, Sections 78 and 79 case the primary duty of deciding appeals on the Secretary of State. We have held that he cannot do so in a way which is compatible with Article 6."
MR GEORGE: My Lord, formally I therefore seek an order quashing that part of the New Forest District Local Plan which designates as part of the New Forest Heritage Area or shows as so designated land to the north of Totton and to the east of the A326.
MR JUSTICE OUSELEY: Yes, I noted in my judgment, I think I noted it from your skeleton, in fact it is only that part of the Proposals Map that matters. There is no policy that arises for consideration.
MR GEORGE: Therefore I do not think it appropriate to have a specific reference to D1, which was contained in my skeleton early on.
MR JUSTICE OUSELEY: No, it is not. That policy is unexceptional when applied to the relevant area.
MR GEORGE: That is right. And the wording again at page 27 of the bundle from the claim form is a bit imprecise, which is why I put it in the way I just put it.
MR JUSTICE OUSELEY: I think it is sufficient if I order the quashing of so much of the Proposals Map as designates as part of the New Forest Heritage Area, that land which lies between the A326 and the 3A6.
MR GEORGE: I am grateful. I do not believe that matter is going to be contentious.
MR JUSTICE OUSELEY: I so order.
MR HARWOOD: Yes, my Lord.
MR GEORGE: So far as costs, I would seek my costs against the first defendant, that is against the Council.
MR JUSTICE OUSELEY: I think we are going to have an argument about the way these costs should be distributed. Shall I make the position clear, at least as the starting point? You are entitled, subject to any remarkable eloquence from Mr Harwood, to your costs in relation to the domestic law challenge. So far as the human rights challenge are concerned, I think the Secretary of State may have something to say about what should happen to those costs, but I do not see the New Forest should have to pay them.
MR GEORGE: Should have to?
MR JUSTICE OUSELEY: I do not see that they should have to pay your costs in so far as they are attributable to the distinct human rights point.
MR GEORGE: My Lord, that I can understand.
MR JUSTICE OUSELEY: Mr Harwood, is there anything you wanted in relation to costs if I order it on that basis?
MR HARWOOD: I would not seek to dissuade your Lordship from that course.
MR JUSTICE OUSELEY: There will be an order for New Forest to pay the costs of Bovis, except for those which arise in relation to its human rights point.
MISS OLLEY: May it please your Lordship, I appear on behalf of the Secretary of State.
MR JUSTICE OUSELEY: Yes.
MISS OLLEY: My Lord, I was intending to refer to a judgment of yours in the case of Bloor Ltd. I passed a copy of that to my learned friend. I have not yet passed a copy to your Lordship. Would you like me to do so?
MR JUSTICE OUSELEY: Just remind me what I said in that case. I think I made an order for costs in favour of the Secretary of State in relation to the human rights issues.
MISS OLLEY: Indeed, you did.
MR JUSTICE OUSELEY: That was a case in which, as I recollect it, Mr Holgate really fled the field.
MISS OLLEY: I believe that was the way it was put.
MR JUSTICE OUSELEY: Mr George, is there anything you want to say in relation to the human rights, as I am minded to make an order in favour of the Secretary of State against both McAlpines and Bovis in relation to the human rights points?
MR GEORGE: Can I indicate that I do not formally agree that. In my submission the Secretary of State is perfectly entitled to intervene, but it was not necessary for him to do so. Members of the Planning Bar are perfectly capable now of arguing those matters, and if he does intervene then he should bear his own costs. So that would be my primary submission.
If you are against me on that, I would say he should not have his entire costs. A very considerable amount of time was spent by everyone on those Austrian cases, which was a whole series of them, which your Lordship, in the clearest possible of terms, said in your Lordship's judgment that you did not derive assistance from those cases. My Lord, if, therefore, the Treasury Solicitor is to recover his costs, it should be, may I suggest, say two-thirds of his costs because we spent so long pursuing certain cases which were not ultimately of any assistance.
MR JUSTICE OUSELEY: You are not suggesting, are you, that in this dog eat dog world that McAlpines should bear more of the costs because it was their application for a declaration of incompatibility that might be thought to have caused the Secretary of State to put his or her, as the case may be, head over the parapet?
MR GEORGE: My Lord, it seems to me, whatever is the order in favour of the Secretary of State or the Treasury Solicitor in this matter, it should be equal between ourselves and McAlpines. I do not seek to differentiate.
MR JUSTICE OUSELEY: Mr Willetts, is there anything you want to say in relation to this for McAlpine?
MR WILLETTS: As far as McAlpine is concerned, I agree entirely with what Mr George says in relation to the costs in so far as the Secretary of State is concerned.
MR JUSTICE OUSELEY: So far as the Secretary of State's costs are concerned, it seems to me that this was a case where the Secretary of State was not merely entitled but was really expected to appear. So far as I am aware, this was the first time at which the potential incompatibility of the local plan process with the Convention was being considered. It was a case in which, even on Mr George's arguments, whilst they were not formally arguments as to incompatibility, were ones which nonetheless would have entailed a major change in the way in which the process worked. Whilst, of course, Mr George is right to say that members of the Planning Bar are perfectly able to deal with human rights points and do not require any special expertise as instructed by the Treasury Solicitor and that there is no particular magic attached to those who appear on his behalf, nonetheless the Secretary of State does have a particular interest which might be thought could not adequately be represented by the interests of the local authorities. That has nothing to do with the advocates who appear for the local authorities, who are themselves able and experienced advocates. It is to do with the interests which they represent.
Accordingly, I am going to order that the Secretary of State's costs be paid as to 50% by McAlpines and 50% by Bovis. Whilst I appreciate that the Austrian cases were of no assistance, nonetheless I think it was necessary for them to be shown to me because this is the sort of jurisprudence which is available and my consideration would have been incomplete if I had not seen the way in which the court had approached those cases.
MR STOKER: I apply for my costs my Lord against McAlpines, both in respect of the domestic challenge and the human rights point in my submission.
MR JUSTICE OUSELEY: Mr Willetts?
MR WILLETTS: I do not think I can really object to that.
MR JUSTICE OUSELEY: I do not think you can. An order for costs on all grounds.
I have been provided with statements of costs, but not merely in view of the hour, but in view of the length of the hearing, are people asking me to make specific orders?
MR GEORGE: No, my Lord. I think they should be assessed in the normal way.
MR JUSTICE OUSELEY: It is really in the Swale and McAlpines case I have got --.
MR STOKER: I do not know if it is in dispute. I did mention it to my friend.
MR JUSTICE OUSELEY: If it is not in dispute then you will be able to agree it with without any intervention on my part. If it is in dispute I am not minded to hear it unless you were really pressing. The case has gone over the normal period for assessment. I would be inclined to let it go for detailed assessment.
MR WILLETTS: I did have the opportunity of discussion, but we would like it to go to detailed assessment.
MR JUSTICE OUSELEY: Right, subject to detailed assessment. You can always agree it if you wish.
Are there any other matters?
MR WILLETTS: Just one other matter. I am instructed on behalf of McAlpines to reserve their position to seek leave to appeal so far as at least the human rights point is concerned.
MR JUSTICE OUSELEY: Yes. I am not going to grant you permission in relation to the human rights point because it seems to me that the position in relation to the domestic law is quite clear. The incompatibility argument which you raised has failed at all levels, and in particular it has failed at the retrospectivity point, and in my judgment that is quite clear. In many ways what I have done is to deal with matters plainly in an obiter way, but I had heard full and very helpful argument from a variety of sides with a variety of interests, and it would have been discourteous at least not to have dealt with the matters. So I refuse leave.