QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Dinedor Hill Action Association
|- and -
|County of Herefordshire District Council
- and -
J S Bloor (Tewkesbury) Limited
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Mr Timothy Jones (instructed by Mr Alan McLaughlin, Solicitor to the Council) for the Defendant
Mr Ian Dove Q.C. & Richard Kimblin (instructed by Hammonds) for the Interested Party
Hearing dates: 26 & 27 June 2008
Crown Copyright ©
Mr Justice COLLINS :
"… after considering the report of the person holding the inquiry … [to] 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."
Where the intention of a planning authority is not to accept a recommendation, a further inquiry can be held into any objection to that intention: Regulation 29(4)(d). If the authority decides not to hold an inquiry, Regulation 28(1) requires it to "prepare a statement of case of their decisions as respects all the objections and their reasons for each decision." The defendant decided that a further inquiry need not be held and that decision is attacked. The claimant submits that a particular part of the reasons for failing to accept the recommendation should, since it had not been considered in depth in the inquiry that had been held, be subjected to the inquiry process.
"(2)(a) not within the appropriate power; or
(b) a procedural requirement has not been complied with.
(3B) provides that the court may quash the policy if satisfied that it was outside the appropriate power, or if there was a failure to comply with a procedural requirement, that failure substantially prejudiced the claimant."
"This 13 hectare site includes land for structural landscaping and forms the largest Greenfield housing site in the Plan and lies directly adjacent to the Marches railway line (Hereford – Newport) south of the city of Hereford. This land, which lies between Bullingham Lane and Hoarwithy Road and is crossed by the Withy Brook to the east, would form the first phase of a much larger residential development to take place at Bullinghope beyond this Plan period. Access to this initial development of 300 dwellings would be via Bullingham Lane and Hoarwithy Road with new cycle and pedestrian routes within the development to link to those existing and the bus routes in the adjoining residential areas. Development within this area would be conditional on the delivery of the Rotherwas Access Road, the route of which is safeguarded through Plan policy T10 and now has planning permission. The release of housing development land will be subject to appropriate planning obligations and conditions of planning permission being in place to enable and ensure construction of the Rotherwas Access Road. In recognition of this requirement on the development, no affordable housing is being sought. The housing will be required to be designed and laid out to take account of existing residential amenity and issues of health and safety in respect of the railway line and Withy Brook, providing a range and mix of dwelling units with useable open space in accordance with Plan Policies. Initially a development brief will be required which will form part of an overall master plan for the area to establish the community facilities and development concepts required for this emerging new district of Hereford."
The reference to forming the first phase of a much larger residential development beyond the plan period has been deleted in the UDP as adopted (see paragraph 5.4.13). However, it is, I think, obvious that once a significant development is allowed on the proposed site, it will be easier to establish that future requirements for housing should be allocated to adjacent land.
"Part of the extra 500 dwellings would be made up from increased capacity at allocated sites. In addition, there are a number of previously developed sites, all but one in Hereford, which I consider to be suitable in principle for residential development. However, I have not recommended the allocation of these sites. To do so could delay adoption of the Plan …"
He dealt with the Holmer and Bullinghope sites in Paragraphs 17 to 19, which read:-
"17. In the deposit draft version of the Plan, an allocation was made for 300 dwellings at Holmer. This allocation was the subject of considerable objection. Also the Council later perceived benefits in a development at Bullinghope associated with the Rotherwas Access Road. As a result, in the Revised Deposit Draft, the allocation was switched to Bullinghope.
18. I support the initial position of the Council. I find that the Holmer site is suitable for housing development of the scale envisaged. It is a relatively well contained site that is seen in an urban context. By comparison, the Bullinghope site is totally unsuitable. Development there would be a major incursion, physically separated from the built-up limits of the city and harmful to the rural character and appearance of the area. In addition, the employment and transport imperatives that influenced the Council are no longer material.
19. I have considered all the objections to the alternative sites as well as the representations of support. Relevant matters were before the inquiry. As such, I feel that it would be possible to allocate the Holmer site without recourse to a modifications inquiry. I have no hesitation in commending the Holmer site."
Not surprisingly, Mr Forsdick relies heavily on the inspector's clearly expressed opinion that the Bullinghope site was "totally unsuitable". Paragraph 18 reflects what he said in Paragraph 5.15.35 of his report.
"5.14.34. In terms of landscape quality and local amenity, I have visited this area several times. I have observed the objection site from roads, from footpaths and from the high ground of Dinedor Hill. On each occasion, the predominant impressions that I gained in this locality are of open countryside; of a landscape that is distinctly rural in its character and appearance; and of an extensive, gently rolling agricultural prospect.
5.14.35. I appreciate that there is an outlier of development at Bullinghope Lane and at Bullinghope itself. Also, further to the east, the Rotherwas Industrial Estate is to be found beyond Watery lane. I have also borne in mind the likely impact of the Rotherwas Access Road. However, the abiding picture is of a landscape devoid of large scale built development and the associations of an urban area. The objection site itself has all the hallmarks of the open rural countryside; and it is an integral part of the wider agricultural landscape unsullied by urban development.
5.14.36. I consider that the proposed development would be a material and unjustified incursion into the open countryside surrounding Hereford. It would be significantly harmful to the rural character and appearance of the area and, in the circumstances that I have described, an unwarranted accretion to the south of the city. I have no hesitation in recommending that the proposed allocation should not be pursued under the unitary development plan.
The railway as a physical barrier.
5.14.37. I strongly support the view that the railway is an obvious physical boundary to the spread of Hereford. I appreciate that, as referred to above, there are elements of built development to the south of the railway line. There is also the prospect of the Rotherwas Access Road. However, to my mind, these elements do not in any way diminish the marked contrast between the city to the north of the railway and the agricultural land to the south. To breach this boundary and to allow housing development to spill into the rural countryside would not be justified."
"The Inspector has increased the overall strategic dwelling requirement for the County from 11,700 to 12,200 dwellings for the Plan period, in line with the Regional Spatial Strategy. To ensure certainty that this requirement will be delivered, and given the proximity of the end of the Plan period (2011) and the fact that development of several allocated sites is yet to commence, it is considered that an additional allocation is required. Further provision should be made at Hereford which is a defined sub-regional foci within the Regional Spatial Strategy. The Bullinghope site offers the opportunity to help ensure that the strategic housing requirement is appropriately met. Its allocation and development will serve to provide new housing in a Greenfield location to the south of Hereford, well related to employment provision at Rotherwas.
The site also offers the opportunity to secure funding for the proposed Rotherwas Access Road. The Inspector has accepted that this is a legitimate requirement and that the Access Road would be a necessary accompaniment of housing development at Bullinghope. Further promotion of industrial development on the Estate is a key priority of the Council and is recognised as an essential component in sustaining the growth and competitiveness of the local community. This is in line with the objective of the Plan (as proposed to be modified pursuant to the Inspector's recommendation 3.19/5) to direct most new employment development to Hereford. The provision of access improvements through a package of transport measures which include the Access Road will help achieve this aim."
Mr Forsdick attacks these reasons as inconsistent with its approach at the inquiry and on the ground that they fail to address the inspector's reasons for disapproving the allocation in planning terms and for concluding that it was not needed to meet the requirements for housing completion to 2011. The defendant has produced material which, it is said, shows that it was correct to doubt that allocations would come forward and, which, incidentally, shows that development at Holmer has not commenced. But that material cannot show that the defendant was at the time justified in rejecting the inspector's view since it did not (because it could not at the time) refer to those matters. If it had, objections could have focussed on this and further evidence might have been produced. Mr Forsdick further attacks the first sentence since, as he submits, it shows a flawed approach. It was not necessary to be certain that the housing numbers could be achieved: they were maxima. Thus over allocation to meet possible shortfalls was unnecessary and no reason was given to differ from the inspector's planning judgment.
"The housing strategy, in terms of both the levels and distribution of housing was the subject of considerable debate at the inquiry … [The] proposed modification does not indicate that allocated sites will not come forward within the Plan period, but rather doubts whether all such sites will be completed by 2011. It is delays in the Plan's progress rather than problems with the sites themselves which has resulted in this uncertainty … The reasons for the rejection of the inspector's recommendation make clear that this will ensure certainty that its target of 12,200 will be achieved, rather than exceeded."
On page 9, the point is made that "the site is that which best relates to the existing built form of the city in this location and does not fall within any designated landscape." These do no more than specify the concern that there will be insufficient completions by 2011 and assert that the absence of any designated landscape together with the alleged good relationship with the built form of the city justify the objection based on landscape impact.
"The fact that a proposed modification involves issues which have not been subject to consideration at the deposit stage could be a highly material consideration in determining whether or not a further inquiry should be held.
Considerations which 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 examination of the opposing contentions; …
(3) the practical implications of a second inquiry and, in particular, whether it would potentially be of material benefit to the decision making process;
(4) delay and the desirability of securing an up to date adopted development plan;
(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 … [subject to Wednesbury principle]."