QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| PERSIMMON HOMES(THAMES VALLEY) LIMITED
TAYLOR WOODROW HOMES LIMITED
THE GARDEN VILLAGE PARTNERSHIP PLC
BRYANT HOMES SOUTHERN LIMITED
|- and -
|STEVENAGE BOROUGH COUNCIL
Timothy Straker QC & Richard Humphreys (instructed by Stevenage Borough Council) for the Defendant
Hearing dates: 28th and 29th April 2005
Crown Copyright ©
HH Judge Mole QC sitting as a Deputy High Court Judge :
"while it is just about possible to proceed on a contingency basis in entertaining local plan reviews/amendments and related work which would give effect to strategic proposals, it would be highly confusing to the public and interested parties and the procedure would lack credibility..... moreover, it is a fatal objection to such an approach in the case of green belt land, that "exceptional circumstances" could not possibly have been demonstrated at the initial stage, and the decision on whether development of Green Belt was justified on that criterion would have passed out of the Structure Plan context and be left entirely to HCC at a later stage."
"However the more fundamental objection is that in the Panel's view there is no realistic prospect of progress with regeneration removing or diminishing the need for supplementary provision for 6,000 dwellings over and above the 15,000 covered by Policy 6 if the total 65,000 dwelling requirement is to be met, a requirement in the nature of a minimum or near minimum requirement. Given the long lead time in planning for such developments, and the need for as much certainty as practicable in structure planning, planning should begin on a firm basis without delay."
"POLICY 8 STRATEGIC LOCATIONS FOR SUPPLEMENTARY HOUSING DEVELOPMENT
Land suitable for strategic housing allocations, together with necessary associated development, will be identified in the following locations... and excluded from the Green Belt.
|Stevenage||West of A1(M)||1,000|
|North Hertfordshire||West of A1(M) at Stevenage||2,600|
The planning of these developments will be brought forward through the review of the relevant local plans.
In the case of the development west of the A1(M) at Stevenage, the master plan will provide for:
i) an initial phase of 5,000 dwellings, some of which to be completed after 2011;
ii) in the longer term, a possible second phase of a further 5,000 dwellings.
Providing that 3,600 dwellings in the initial phase are planned to be built by 2011, the detailed dwellings split at this location between North Hertfordshire district and Stevenage Borough will be determined in the relevant local plans, informed by agreed master planning work to establish the most sustainable form of development.
POLICY 9 DWELLING DISTRIBUTION, 1991 TO 2011
Local plans will make provision in accordance with the development strategy as set out in policies 6, 7 and 8, for a net increase in the period 1991 to 2011 of about 65,000 dwellings distributed as follows:
|Stevenage||5,700||includes 1000 West of A1(M)|
POLICY H2: STRATEGIC HOUSING ALLOCATION - STEVENAGE WEST
IN ORDER TO MEET THE PROVISIONS OF STRUCTURE PLAN POLICY 8, LAND AT STEVENAGE WEST IS ALLOCATED FOR THE DEVELOPMENT OF APPROXIMATELY 1,000 DWELLINGS.
"There are a number of responses both to the deposit and the revised deposit versions of the local plan which question the appropriateness of the strategic housing allocation at Stevenage West ….. Indeed very recently it is understood that the County Council has proposed to issue a pre-deposit consultation document on possible alterations to the structure plan. The Borough Council has consistently responded to such objections by referring to the adopted Hertfordshire Structure Plan Policy 8 which allocates Stevenage West as a strategic housing allocation and to the fact that the local plan must be in conformity with the adopted structure plan."
"it would be wrong to delay the Local Planning Inquiry. Firstly, there is no present intention on the part of the Borough Council to withdraw its plan and secondly, the scope of the Inquiry could not be affected by any decision of the County Council. Indeed given the importance of meeting the identified housing need, delay at this stage would be likely to be harmful to the achievement of this aim. In conclusion, the Local Plan must be in general conformity with the adopted Structure Plan, which includes Stevenage West as a strategic Housing allocation. Consequently, the scope of this inquiry cannot include arguments, for example, that Stevenage West should neither be allocated nor developed during the plan period up to 2011."
"3.59 As the need for this development has been justified strategically, I consider it can only be reassessed as part of a similar strategic exercise. Until that strategic exercise has been carried out, an exercise that will need to take into account the revised policy approach to the selection of new housing development that is promoted in national policy guidance, there must be at least some uncertainty on the strategic justification for the development.
3.60 In order to be in general conformity with the adopted Structure Plan I consider this Local Plan should identify the land necessary to provide about 1000 dwellings as required by the Structure Plan. ... At the same time, in order to reflect the current uncertainty, that identification should however be caveated by a statement that makes it clear the formal release of the land for development is dependent on completion of a strategic evaluation of the proposed development determining it continues to be needed. The necessary evaluation could be carried out as part of the preparation of the emerging Review Structure Plan. If development of the land continues to be justified strategically, then the formal release of the relevant land in the form of granting planning permission can be considered. If that justification is not confirmed, this Local Plan will need to be reviewed to delete the proposed development. In this latter event it will also be necessary to make changes to the Plan, particularly to Chapter 12, but also associated changes to matters related to the west of Stevenage development, such as to the Plan's transport, Green Belt, countryside and employment provisions.
3.61 I consider this approach would ensure that previously-developed sites in urban areas are developed before green field sites. In this way the Plan would be consistent with a main thrust of the plan, monitor and manage new policy direction advised in PPG3 and as expanded in the DETR publication 'Planning to Deliver'."
"It is argued that a version of the Plan amended in this way would remain in general conformity with the Structure Plan. The proposed development has been justified strategically in the light of the sustainability provisions of Policy 1 in the adopted Structure Plan and represents an important part of the strategic policies/proposals of that Plan. To remove the relevant part of that growth from this Local Plan would in my view pre-judge the outcome of a proper re-appraisal of its strategic justification, an exercise that could be carried out within the context of reviewing the Structure Plan. The County-wide considerations cannot properly and fully be assessed as part of this Local Plan. I cannot therefore accept that removal from this Local Plan of part of the development proposed to the west of the A1 (M.) at Stevenage that is proposed in Policy 8 of the adopted Structure Plan as a strategic Housing allocation, would result in a Local Plan in general conformity with that Plan. Removal of the proposed development would represent a material change to the structure plan's proposals."
"Firstly, in order for this Local Plan to be in general conformity with the adopted Structure Plan it must satisfy Policy 8 of that Plan and identify land west of the A1(M) for the development of about 1,000 dwellings.
Secondly, there is considerable uncertainty over the strategic justification for that development, particularly given the national planning policy guidance introduced by PPG 3. Given that uncertainty, the Local Plan should make it clear that the identified land cannot be granted planning permission for the proposed development until and if the strategic justification for it has been reconsidered and accepted. If the strategic justification for the development is not made, either in the emerging Structure Plan or within some other framework, then this Local Plan will need to be the subject of a review to delete that part of the proposed new settlement west of the A1(M) at Stevenage or otherwise to respond to the revised strategic policy context.
Thirdly, other provisions of the plan that relate to Policy H2 will also need to be changed to remain consistent with this approach. For example, given the current uncertainty referred to above and the suggested policy change I have considered it unlikely that 500 dwellings could be completed within West of Stevenage up to 2008. Policy H4 should therefore be amended to indicate the completion of 400 dwellings up to 2008, with 600 between 2008 and 2011.
Finally, I consider this approach would ensure the Local Plan remained in general conformity with the adopted Structure Plan whilst reflecting the changes in circumstance, such as the publication of PPG3, that have occurred since the Structure Plan was adopted. It would therefore most appropriately respond to the current situation."
POLICY H2: STRATEGIC HOUSING DEVELOPMENT STEVENAGE WEST
In order to meet the provisions of Policy 8 in the adopted Structure Plan, land at Stevenage West is identified for the development of approximately 1000 dwellings. The allocated land is safeguarded from development pending reconsideration and acceptance of its strategic justification.3.2.11 ....
3.2.13 the Structure Plan is currently being reviewed in the light of the material changes that have occurred since it was adopted in 1998, including the need to take into account the provisions of PPG 3. That exercise will reassess the justification for the strategic development west of the A1 (M.) at Stevenage. Only if that review of the Structure Plan or an alternative form of reconsideration of the strategic need for the development determines that Stevenage West is required to meet the County's development needs up to 2011 can the site be considered as allocated and available to be released for development. If the Review Structure Plan or alternative form of reconsideration does not justify development of the land up to 2011, it will be necessary to review this Local Plan to take account of the revised strategic policy context.
"Where,….regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."
Section 38 Development Plan
(1) A reference to the development plan in any enactment mentioned in subsection (7) must be construed in accordance with subsections (2) to (5).
(3) For the purposes of any other area in England the development plan is-
(b) the development plan documents (taken as a whole) which have been adopted or approved in relation to that area.
(5) If to any extent a policy contained in a development plan for an area conflicts with another policy in the development plan the conflict must be resolved in favour of the policy which is contained in the last document to be adopted, approved or published (as the case may be).
(6) If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.
(7) The enactments are-
(a) this Act;
(b) the planning Acts; ….
(8) (1) During the transitional period a reference in an enactment mentioned in section 38(7) above to the development plan for an area in England is a reference to-
(b) the development plan for the area for the purposes of section 27 or 54 of the principal Act."
"1(1) During the transitional period a reference in an enactment mentioned in section 38(7) above to the development plan for an area in England is a reference to –
(b) the development plan for the area for the purposes of section 27 or 54 of the principal Act.
(2) The transitional period is the period starting with the commencement of section 38 and ending on whichever is the earlier of
(a) the end of the period of three years;
(b) the day when in relation to an old policy , a new policy which expressly replaces it is published ,adopted or approved."
So the effect of the legislation is to continue the old development plan for a transitional period of no more than three years from 24th September 2004.
36 (1) the local planning authority shall within such period if any as the Secretary of State may direct, prepare for their area a plan to be known as a local plan.
(2) a local plan shall contain a written statement formulating the authority's detailed policies for the development and use of land in their area.
(4) a local plan shall be in general conformity with the structure plan.
(6) a local plan shall also contain-
(a) a map illustrating each of the detailed policies; and
(b) such diagrams, illustrations or other descriptive or explanatory matter in respect of the policies as may be prescribed,
and may contain such descriptive or explanatory matter as the authority think appropriate.
"they shall, before the end of any period prescribed for the purposes of that subsection, supply the authority responsible for the local plan with-
(a) a statement that the plan or the proposals are in general conformity with the Structure Plan; or
(b) a statement that the plan or the proposals are not in such conformity.
(3) a statement that a plan or proposals are not in such conformity shall specify the respects in which the plan or proposals are not in such conformity.
(4) any such statement shall be treated for the purposes of this Chapter as an objection made in accordance with the regulations."
(a) a local planning authority proposes to make, alter or replace a local plan;
(b) copies of proposals for the alteration or replacement of the Structure Plan for their area have been made available for inspection under section 33 (2); and
(c) the authority mentioned in paragraph (a) include in any relevant copy of the plan or proposals a statement that they are making the permitted assumption, the permitted assumption shall, subject to subsection (9), be made for all purposes (including in particular any question as to conformity between plans).
(7) in this section "the permitted assumption" means the assumption that-
(a) the proposals mentioned in subsection (6) (b); or
(b) if any proposed modifications to those proposals are published in accordance with regulations made under section 53, the proposals as so modified,
have been adopted.
(10) the provisions of a local plan prevail for all purposes over any conflicting provisions in the relevant Structure Plan unless the local plan is one-
(a) stated under section 35C not to be in general conformity with the Structure Plan; and
(b) neither altered nor replaced after the statement was supplied.
"11(1) this paragraph applies if the Secretary of State thinks-
(a) that the conformity requirement is likely to give rise to inconsistency between the proposals and relevant policies or guidance, and
(b) it is necessary or expedient to avoid such inconsistency.
(2) the Secretary of State may direct that to the extent specified in the direction the conformity requirement must be ignored.
"107. The task of statutory construction here requires a court to discern and express the meaning of the statutory provisions, their scope or limits, or defining characteristics. I put it that way because the phrases in question do not readily permit of the expression of their true construction by a process of substitution of more or different words. It is easier to set out what are the characteristics which define the concept, in its statutory context, or rather to identify whether a particular characteristic is within or without the statutory concept.
108. Once the Court has determined, as a matter of law, the scope of the phrase "general policy," the decision of whether a particular policy is within its scope is a matter for the decision maker provided that he has correctly directed himself as to its scope, or its defining characteristics and not by reference to irrelevant characteristics or considerations, and has reached a decision which falls within the scope of the phrase as a matter of law. It is not a question of whether his interpretation is reasonable and therefore right. It is a question first of statutory construction and then of application: what is the scope of the statutory phrase? Does the policy fall within its scope? Both questions are for the Court but the latter is answered by a review of the application of the true scope of the phrase to the facts, rather than a primary decision by the Court. If the policy is reasonably regarded as falling within the true scope of the phrase, there is a duty to include it in the Plan.
"If there is a dispute about the meaning of the words included in a policy document which a planning authority is bound to take into account, it is of course for the court to determine as a matter of law what the words are capable of meaning. If the decision maker attaches a meaning to the words they are not properly capable of bearing, then it will have made an error of law, and it will have failed properly to understand the policy (Horsham DC v. Secretary of State for the Environment  1PLR81, per Nolan LJ at 88) if there is room for dispute about the breadth of the meaning the words may properly bear, then there may in particular cases the material considerations of law which will deprive a word of one of its possible shades of meaning in that case as a matter of law.
This in my judgment, is the underlying principle of law which Auld J was putting into words in his judgment in Northavon D. C. v. Secretary of State for the Environment [ 1993] JPL 761. When discussing the meaning of the expression "institutions standing in extensive grounds", the report reads at 763:
"The words spoke for themselves and were not readily susceptible to precise legal definition. Whether a proposed development met the description was in most cases likely to be a matter of fact or degree and planning judgment. He [the judge] said "in most cases" because it was for the Court to say as a matter of law whether the meaning given by the Secretary of State or one of his Officers or Inspectors to the expression when applying it was outside the ordinary and natural meaning of the words in their context. See Gransden v. Secretary of State for the Environment (1987) 54 P. & CR86 per Woolf J., as he then was ( upheld by the Court of Appeal  JPL 465). The test to be applied by the court was that it should only interfere where the decision-maker's interpretation was perverse in that he has given to the words in their context a meaning that they could not possibly have all restricted their meaning in a way that the breadth of their terms could not possibly justify."
THE INTERPRETATION OF "GENERAL CONFORMITY"
"There are a wide range of defects which may occur in the plan process which make it impossible to state that a Planning Authority must revert to a single point in the process, other than its inception. For example, in the present case the defect occurred at the modification stage. However, in (Laing Homes Ltd v Avon County Council  67 P. & CR 34) at page 56, the fault occurred at the Inquiry Inspector's Report stage. It is possible that defects could occur along the length of the plan process, and the lack of a single fixed point other than inception strongly underlines the logic of the construction argument which Mr Elvin had submitted.
The absence of a single fixed point other than inception to which the process should revert after quashing, would allow for undesirable differences in opinion to arise between the Planning Authority and the objectors as to the appropriate time."
"Should the court choose to quash all or part of the plan, those quashed parts are treated as if they had never been included in the plan when it was deposited but any remaining un-quashed parts of the plan retain adopted status. It is not considered likely that a successful legal challenge to the plan can be sustained. However should all or part of the plan be quashed the council will have the power to bring forward again -- through the new Local Development Framework (LDF) -- any policies all proposals that are quashed."