QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Fairfield Partnership
|- and -
|Huntingdonshire District Council
Persimmon Homes (East Midlands) Limited
Mr R. Purchas Q.C. and Miss J Clayton (instructed by Huntingdonshire District Council) for the Defendant
Mr A. Kelly Q.C. and Mr G. Jones (instructed by Hegarty & Co.) for the Interested Party
Hearing dates : 2nd and 3rd October 2003
Crown Copyright ©
Mr Justice Lindsay:
"287. (1) If any person aggrieved by a unitary development plan or a local plan [minerals local plan or waste local plan] or by any alteration. or replacement of any such plan or structure plan, desires to question the validity of the plan or, as the case may be, the alteration . or replacement 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 or, as the case may be, its alteration, repeal or replacement,
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 or, as the case may be, the alteration, or replacement 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 or, as the case may be, the alteration . or replacement either generally or in so far as it affects any property of the applicant."
(1) What, in law, is the test required to be passed before a Council may properly choose not to follow an Inspector's recommendation when it comes to consider a proposed modification of the Local Plan?
(2) What test did the Council in fact apply in its consideration at the meeting on the 14th November 2002? This question will require me to look first at what test the Council was advised by its officers to apply.
(3) Was the test which the Council did apply more stringent than that required in law; in effect, did the Council set itself too high a hurdle to be cleared before it would be safe not to follow the Inspector's recommendation?
(4) If, by reason of the answer to (3) being affirmative, a discretion under section 287 (2) arises, how should the discretion be exercised?
The Planning History
"The Council is required to consider its response to each of the Inspector's recommendations, and then to publish this response (along with any modifications to the original Deposit Draft of the Alteration that are necessary as a result of those recommendations that it chooses to accept). The Inspector's Report is not binding upon the Council but case law has established that an authority must have adequate reasons for rejecting an Inspector's views. In practice this means that authorities should accept an Inspector's findings unless there are very good reasons to reject them. To do otherwise risks legal challenges to the plan and further delays in getting the new policies adopted."
"The final column sets out the reasons for accepting/rejecting each recommendation; where the proposal is to accept, this column merely cross-refers to the relevant reasoning contained in the Inspector's Report. Detailed reasons are, however, set out where it is proposed not to accept her recommendation, in view of the legal requirement that the Council give adequate reasons for such action."
"27. (1) Where a Local Planning Authority cause a Local Inquiry or other hearing to be held for a purpose mentioned in Regulation 26 (1), the Authority shall, after considering the report of the person holding the inquiry or other hearing, 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 any of those decisions which do not follow a recommendation contained in the report."
"Because additional housing sites need to be found, it is considered that most of these sites [the 11] will need to be allocated even though none of them were put forward by the Council (and indeed most were opposed at the Inquiry). The Council could in principle reject some or all of these sites in favour of other proposals put forward by objectors, but those sites had also been opposed by the Council, and all had been rejected by the Inspector following a careful consideration of their respective merits ..Based upon that assessment it is considered that any additional allocations should come from [the 11 sites which the Inspector had recommended for allocation]."
Cardinal Park, of course, was not within the 11; Ermine Street was.
"On balance (and in the specific context of the need for additional sites to be allocated) it is considered that the Inspector has identified and weighed the relevant material considerations in an appropriate manner, with two exceptions."
"These recommendations are not binding upon the Council, but case law has established that an authority must have adequate reasons for rejecting an Inspector's views." .. "In most cases the Council is suggesting that it will have to accept the Inspector's recommendations." . "In a few cases the Council considers that adequate reasons exist for it not to accept the Inspector's recommendations."
"In summary the objectors' proposal [housing development at Ermine Street] would be an isolated island of residential development, visually and functionally cut-off from the rest of Huntingdon, very poorly related to the existing form and structure of the town. The implications of isolation are made worse by the fact that the development area indicated would be unlikely to be sufficiently large to support a primary school or other community facilities such as retail outlets."
" . it should be reiterated that the Council must have "adequate" grounds" for rejecting any of the Inspectors' recommendations. This is a legal test which, in effect, means that authorities should accept an Inspector's findings unless there are very good reasons to reject them. If recommendations are rejected without adequate reasons the Council would be open to legal challenges and a possibility that parts of the plan will be quashed by the Courts. Even if the public consultation reveals local opposition to particular recommendations that the Council has proposed to accept, that in itself would not be an adequate basis for now rejecting the recommendations concerned. Adequate reasons need to reflect substantive and relevant issues that justify going against what the Inspector has said."
So far as concerns Ermine Street the Council had received 7 responses supporting its allocation to housing and 46 objecting to it. Again the officers used a tabular form to indicate their proposals to the Cabinet, and, summarising those proposals, the officers said:-
"Members will see from Annexe 2 that none of the objections are considered sufficient to justify further proposed modifications to the Alteration. In other words no arguments have been made that merit any changes to the proposed modifications that the Council approved on the 12th June and none of the responses justify accepting recommendations made by the Inspector which the Council was proposing not to accept."
The officers proposed that the Cabinet should recommend to the Council that the response to the consultation exercise had not raised issues that were such as to justify further public local inquiry and that no further modifications needed to be proposed to the Huntingdonshire Local Plan Alteration in the light of the responses received.
"The proposed allocation at Ermine Street prompted both objections and expressions of support (although the latter are in the minority). Many of the objections relate to fears about traffic congestion; indeed, 35 of the objections were from residents of Upton concerned about the effect upon Ermine Street. The effect specifically upon the Spittals Interchange has also been raised, along with the site's separation from the rest of the town. These concerns raise valid points indeed they were argued by the Council at the inquiry but the issues were considered at length by the Inspector and no additional evidence has come forward that is sufficient to reject her recommendations. The same is true of visual impact, which is also raised by objectors."
The officers' table records "the Fairfield Partnership (agent: Januarys Chartered Surveyors)" as amongst the many objectors to the proposed modification that Ermine Street should receive allocation for housing.
The table showed Fairfield's objection that Cardinal Park at Godmanchester was every bit as sustainable for housing development as Ermine Street as a reason advanced by objectors and also the officers' proposed response to that assertion, namely that Cabinet should recommend to Council that there should be no change. The officers note that that matter had been considered at the inquiry stage and so had been taken into account in the Inspector's recommendations and in the Council's proposed response.
"That independent legal advice be sought as to the susceptibility of additional modifications to the Plan exposing the Council to legal challenge, to a requirement for further public consultation and/or an inquiry and, in that event, the prospects for the Council's successfully resisting any such challenges. It was further
That the Council be informed of the Cabinet's [conclusions] to the effect that
- The response to the consultation exercise has not raised issues that are such as to justify a further public local inquiry;
- No further modifications need to be proposed to the Huntingdonshire Local Plan Alteration in the light of the responses received; and
- The Council should proceed to publish a notice announcing its intention to adopt the proposals contained in the Alteration after a period of 28 days."
"For legal reasons it recommends that no further change to the Alteration should be made."
"Members will recall that an independent Inspector recommended the deletion of some sites and the allocation of others along with some changes to policies. Legally the Council has to accept those recommendations unless adequate grounds exist for rejecting them (grounds that must be sufficient to withstand challenge in the High Court)."
"The results of the consultation exercise, reported below, do not change this position; no issues have come forward which are considered sufficient (in legal terms) to justify further modifications. Hence to avoid potentially successful High Court challenges, the present report recommends that no further changes be made. It should be stressed that this recommended course of action does not mean that the Council is necessarily happy with nor endorses the new allocations concerned; rather, that it is obliged to accept the Inspector's conclusions in the absence of sufficient legal grounds for rejecting them."
" . The Council must have "adequate" grounds for rejecting any of the Inspector's recommendations. This is a legal test which, in effect, means that authorities should accept an Inspector's findings unless there are very good reasons to reject them. If recommendations are rejected without adequate reasons the Council will be open to legal challenges and the possibility that parts of the Plan will be quashed by the Courts."
"Adequate reasons need to reflect substantive and relevant issues that justify going against what the Inspector has said."
None of the objections, said the officers, were considered sufficient in legal terms to justify further proposed modifications to the Alteration. The officers recommended that the Council should resolve that the consultation exercise had not raised issues justifying a further Public Local Inquiry and that no further modifications should be proposed. Specifically, of Ermine Street, the officers indicated, as they had earlier indicated to the Cabinet, that valid points had been raised and they continued:-
"But the issues were considered at length by the Inspector and no additional evidence has come forward that is sufficient to reject her recommendations. The same is true of visual impact, which is also raised by objectors."
The Councillors meeting on the 14th November 2002 had this report before them.
"In principle it is possible to propose further modifications as a result of representations received, but any further qualifications must be as a result of the contents of objections received and supported by adequate planning reasons."
"The Council then considered the various issues raised at length and in particular, inter alia, those identified by Ward Councillors for Huntingdon "
"In the light of the consultation response, the Council gives greater weight than the Inspector to the importance of avoiding further erosion of the gap between St Ives and Houghton Grange .."
"the Council attaches greater weight to the importance of maintaining a separation than it does to the importance of not disturbing the protected trees ."
"(i) That the response to the consultation exercise has not raised issues that are such as to justify a further Public Local Inquiry;
(ii) That no further modification should be proposed in the Huntingdonshire Local Plan Alteration in the light of the responses received;
(iii) That the Council should proceed to publish a notice announcing its intention to adopt the proposals contained in the Alteration after a period of 28 days; and
(iv) That the leader and portfolio holder for Planning Strategy be authorised to notify the Deputy Prime Minister of the Council's grave concern that the present Local Plan adoption process gives local planning authorities little scope to challenge an Inspector's recommendations especially in cases where the Inspector proposes significant changes arising from sudden shifts in National planning policy."
"In turn this meant that there could be no active participation by residents and local town and Parish Councils in the process as even if they had been kept informed by the District Council, they would have had no right to be heard at the Inquiry when objectors sites are being discussed. This lack of access was the nub of the problem and denied people their rights to a fair and impartial tribunal which is now enshrined in the Human Rights legislation which your Government has enacted."
"Because the Council needed to have "adequate reasons" to challenge an Inspector's recommendation it was faced with having to make significant changes to its Local Plan with little or no scope to manoeuvre. This left Councillors and residents feeling strongly that they had had insufficient ability to debate and influence the final choice of replacement sites and to a general feeling of exclusion in the closing stages of the process."
"I believe this represents a fundamental flaw in the process which . serves to negate local democratic accountability and bring enormous dissatisfaction with the development plan system."
"(1) Where objections have been made to a plan or proposals 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, the Authority shall prepare a statement of their decisions as respects all the objections and their reasons for each decision."
"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 to be held, Regulation 28 shall apply to the consideration of the objections as it applies to the consideration of objections to statutory plan proposals."
What is required if an Inspector's recommendation is not to be followed?
"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 contributes significantly to the beauty of an area, no further elaboration is required."
" The former inquires and recommends, the latter decides in the light of the inquiry and recommendations."
What tests did the Council apply?
"I was present at the meeting. From the discussion that took place and in light of the summary of legal advice I am in no doubt that Members appreciated that they could reject recommendations of the Inspector if they had relevant reasons to do so. Indeed that was the basis on which they decided to reject certain recommendations."
Councillor Holley, leader of the Council, was also at the meeting. He had been an elected Member of the Council, by November 2002, for some 13 or 14 years. He had been a member of the Council's Planning Committee from 1984 to 1995 and, from 2000 to 2001, a member of the Development Control Panel. From 2001 he had also been Chairman of the Cabinet. He says:-
"In the light of the summary of legal advice that I read to the Council I am in no doubt that Members were fully aware that we were able to reject the recommendations of the Inspector so long as we had planning reasons for doing so. That is well borne out by the nature of the debate and the decisions that we made to reject certain of the recommendations that she made. I should also make it clear that I was clear as to our power to require a new Inquiry into proposed modifications if we had considered it appropriate in the light of any new issues that had been raised. I am confident that my fellow Councillors were similarly aware."
Too high a hurdle?
"As will be seen particularly from paragraphs (b) and (d) of the letter, the principal concern of Members was the impact of PPG 3."
That is a reference to "Planning Policy Guidance Note 3 Housing" which I touched on earlier and which was issued in March 2000 and gave guidance as to the adoption of a sequential approach, of a search sequence and of an assessment of criteria in relation to the selection or not of land for housing that differed substantially from earlier guidance.
"This had been issued during the course of the Inquiry and had resulted in the Inspector recommending the deletion of two major sites included within the deposit Alteration Plan by the Council, namely Ramsey West, which had been allocated in the 1995 plan and RAF Upwood. As a consequence the Inspector had to find alternative sites to make up the shortfall in housing numbers, principally from amongst those put forward by objectors, to which the Council had previously objected. The limited number of sustainable sites to choose from at this relatively late stage in the process left many members feeling frustrated."
That, as it seems to me, suggests that what circumscribed the Council was not the stringency of any legal test or any legal difficulty in finding "adequate" reasons to depart from the Inspector's views but the factual difficulty that under the new PPG 3 guidance so few sites were open for selection for housing that if the required number of houses were to be built there was little room to refuse allocation. It was the facts not the law that circumscribed the Council. Moreover, the citations I have included paragraphs 35-37 above - from the letter to the Deputy Prime Minister shows that the Council's complaint was a very broad one going to Human Rights and democratic accountability as to which the Council, if it wished to make representations at all on such a political issue (albeit not, in context, a party political issue) would no doubt wish to make them as forcefully as possible, even, perhaps, without a scrupulous awareness of a need to avoid over-emphasis or even exaggeration. It was, after all, making a political point, not a witness statement. Further, I cannot think that a Council which feels that insufficient respect is paid in the planning process to such views as it, the locally-elected body would, if entirely free, have held, is, merely on that account, necessarily a Council acting upon a wrong view of the situation needed if an Inspector's conclusion is not to be followed. In the circumstances, whilst I see the force of Mr Katkowski's argument, I do not feel able to conclude that it displaces the evidence of Messrs Bingham and Holley that (to conflate the two) the membership were aware that it sufficed for the Council to have relevant planning reasons if the Inspector's recommendations were not to be followed.
The Interested Party's challenge