England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		07 February 2008

Mr Justice Bean :

1. The Claimants are developers of industrial and commercial property and the holders of an option over a greenfield site in Burnley known as Shuttleworth Mead. In this application under section 287 of the Town and Country Planning Act 1990 they seek an order quashing, wholly or in part, the employment land chapter of the replacement Local Plan ("the plan") adopted by the Defendant Council on 4^th April 2006.
2. The plan had been placed on first deposit in February 2002 and second deposit in May 2003. An Inspector, Mr Brian Rogers, held an Inquiry beginning on 20 April 2004 and concluding on 6 August 2004. His report was submitted to the Defendant Council on 17 December 2004 and published on their website five days later. Proposed modifications to the Local Plan were published on 4 October 2005. Objections to the proposed modifications from the Claimants among others, and the Council's responses to those objections, were considered by the Defendant's Executive on 10 January 2006.
3. Burnley falls within what is called a Regeneration Priority Area in the Joint Lancashire Structure Plan, the aim of which is to encourage economic regeneration by achieving a higher rate of growth than elsewhere. Within the process of production of the Structure Plan, the Defendant had argued that the total employment land provision in Burnley be increased from 55 hectares to 70 hectares. That argument had been accepted.
4. The Inspector, in a covering letter accompanying his report, noted that there was a "demonstrable shortage" of employment land in Burnley compared to the Structure Plan requirement. On his analysis the Council's allocated sites would provide about 57 hectares of employment land. Even that provision included a site known as the Hepworths site, and without further detailed appraisal, he had "some doubts about the certainty of that site's availability and development within the Plan period". He considered that even if the Council could provide further evidence to satisfy itself that the Hepworths site was likely to be fully developed within the Plan period, there would be a shortfall of employment land provision of around 13 hectares. He continued:-

"This needs to be addressed now, not left to a future review of the Plan at an unspecified date, because of the District's urgent regeneration needs. Regard must also be had to the long lead-in time required to develop certain sites. Because of the acknowledged shortfall of "quality" sites, that is where the focus should be. I have considered two alternative recommendations. The first is that I should recommend specific allocations to meet the shortfall. The second is that I make a more general recommendation that the Council should undertake further appraisal and propose its own allocations. I favour the latter approach, partly because of the uncertainty surrounding [the Hepworths site], which needs to be reviewed. A full sustainability appraisal is essential for this process, in which it is preferable to allocate land in a considered and comprehensive manner, rather than piecemeal in response to individual objections."

5. The Inspector reported that he had included the Hepworths site in the figure of 57 hectares as he regarded it as potentially very attractive in terms of its size and location. He went on:-

"However, although its redevelopment is highly desirable, I retain doubts about the certainty of achieving this within the Plan period. Even if the bulk of the site can be made available by the occupiers and the potential contamination can be addressed, on the information before me the site is not developable without direct access to the motorway. However, such access would depend on the agreement of the Highways Agency to such a link and of British Waterways Board to a canal crossing. It is therefore out of the hands of a potential developer. Moreover, there is no evidence before me that the necessary detailed consultations have been carried out with the relevant bodies. In my view, these issues need to be directly addressed before the site can be retained in the Plan with any confidence."

6. In his recommendations the Inspector recommended that the Plan be modified as follows: the Council should immediately review the Hepworths site and the potential sites for achieving an increase in employment land provision to 70 hectares. He recommended (at R5.5) that "the Council should carry out further consultation to determine the feasibility of [the Hepworths site] being developed within the Plan period."
7. The Stoneyholme site is smaller and involved less controversy. At the First Stage Deposit of the replacement Local Plan in February 2002 the proposal read:

"EW 1/5 Stoneyholme (7.95 ha.)

This allocation incorporates land carried forward from the Burnley Local Plan – First Review together with the addition of land currently operated by Lancashire County Council as a civic amenity site; the Princess Way depot owned by the Borough Council; a gasometer and Metro Metal scrapyard. The site has good access to the M65.

The site is considered suitable for business (B1), general industrial (B2) and warehousing (B8) uses. A development brief exists for the Princess Way Depot site. This will be expanded to cover the whole site. The Princess Way corridor and the railway viaduct form significant gateways into the borough. The Council will seek to enhance the environment along Princess Way.

The Council is currently pursuing further infrastructure investment to allow development of this allocation. Part of the site is currently in use as a playing field and use of this site for employment purposes will be dependent on the developer providing replacement recreation provision within the Stoneyholme area in accordance with Local Plan Community Facilities Proposal CF1/1."

8. At the Second Stage Deposit, in May 2002, the area of the site remained listed as 7.95 hectares. The only change was the deletion of the last sentence and its replacement by the following, which met concerns expressed by Sport England:

"Part of the site is currently in use as a playing field and use of this site for employment purposes will be dependent on the developer securing replacement provision within the Stoneyholme area. The location and nature of this will be informed by the Council's Assessment of Open Space, Sport and Recreation. A recreation site has been identified at Oswald Street, Burnley which could incorporate replacement playing field provision (see Community Facilities Proposal CF4/1). Any replacement provision should be ready before development of the existing playing field commences."

9. Inquiry Change Notice IC/23, issued in May 2004, stated that:

"Two sites, namely EW1/4 Hepworths and EW1/5 Stoneyholme, include land in existing employment use. It is proposed to make changes to exclude this land from the area of those sites."

The wording of the section on Stoneyholme remained identical to that contained in the Second Stage Deposit version, except that the area was reduced from 7.95 hectares to 6.01 hectares.

10. At the Inquiry the only objection concerning Stoneyholme was to the effect that a gas holder station should be removed from the site. The Inspector did not uphold the objection. The Inspector recommended the site's allocation for employment land use, the stated area being the revised figure of 6.01 hectares. By the time the Plan was adopted the allocated site had been expanded to include some housing bringing the total to 10.45 hectares.
11. In October 2005 the Council published its decisions on the Inspector's recommendations. In every case but one his recommendations were accepted. The exception was Hepworths, where the decision was to accept the recommendation in part. The Council stated that its proposed modification of the Plan in respect of this site would be by:-

"(i) indicating that this site will be safeguarded for employment use in the Local Plan but that further work on the feasibility of bringing it forward for employment uses should be undertaken;

(ii) reducing the site area to 18.21 hectares;

(iii) indicating that an ecological survey of the site will be required to accompany any planning applications:

(iv) stating that a development brief for this site will be prepared."

The first subparagraph departed from the Inspector's recommendation to the extent that the feasibility study was not to precede the proposed adoption of the Plan with the Hepworths site included as employment land. The need to avoid delay to the Plan was not put forward as a reason in the response document. Graham Bolton Planning Partnership Ltd on behalf of the Claimant, objected in the following terms:-

"The schedule of employment sites does not provide the 70 hectares of employment land required by the Structure Plan. It includes [Hepworths] which the Inspector recommended be the subject of the feasibility study to determine whether the site could be developed within the Plan period. In any event, this is already a developed site and not new employment land. The introduction of additional land as an extension to the Stoneyholme site creates new issues which were not considered at the Local Plan inquiry."

12. The Council's response drafted by Ms Whewell was as follows:-

"The Council identifies 67.9 ha of employment land with the remaining 2.1ha to be provided thorough Area Action Plans…. It is therefore considered that adequate employment provision land has been made. [The Hepworths site] includes a considerable amount of land not in employment use and the site area has been modified to exclude the developed area. Although a feasibility study has not yet been undertaken, the site's current owners support its continued inclusion in the Local Plan as an employment site. ….The Council therefore considers that it is entirely justified in retaining this site as an employment allocation while further feasibility work is carried out."

As to Stoneyholme, the Council's response stated that the additional land which was currently housing had been brought forward through the Neighbourhood Action Plan process. The issue of the loss of the playing field, and their replacement by playing field provision elsewhere was also addressed. It was noted that there had been no objections in respect of the Stoneyholme site following the changes made at the second stage deposit of the plan.

The Claimant's Challenge

13. The claim form, issued under CPR Part 8 on 31 May 2006, sought an order that "the Burnley Local Plan as adopted by the Defendant be quashed in part, namely the employment land chapter". However, in his written and oral submissions Mr Ian Ponter for the Claimants concentrated on two sites, Hepworths and Stoneyholme. As to Hepworths the challenge is to the retention of the site in the replacement Plan without a feasibility study involving the Highways Agency and British Waterways Board having been undertaken. As to Stoneyholme the complaint is of its inclusion in the Plan as a 10.45 hectare site notwithstanding that no enquiry had been held into the inclusion of the playing field and 30 houses in the site. Mr Ponter did not press for an order quashing the entire employment land chapter of the Plan: as Mr John Hobson QC for the Defendants submitted, such an order would be disproportionate. Mr Ponter submitted that I should make an order quashing the inclusion of the Hepworths and Stoneyholme sites among those allocated to employment land use.
14. In her written evidence filed in June 2006 responding to the claim Margaret Whewell, Policy and Environment Manager in the Defendants' Planning and Environment Service, said, in relation to the Hepworths site:-

"Although the Council had recognised the need for a feasibility study, none had been carried out at the time the Inspector's report was received because there had been uncertainty about the company's plans for the site as it was part of a larger group that was being taken over. Further discussions with the new owners indicated that they did want to bring the whole site forward for employment uses. They undertook to enter in discussions with the Highways Agency and Lancashire County Council about access and to carry out ground investigation surveys. The Council allocated a budget for a feasibility study to be commissioned during the financial year 2006/07.

It was apparent that a feasibility study for the Hepworths site would not be completed until the middle of 2006 at the earliest. This one issue would therefore have resulted in a delay to the adoption of the Local Plan of 9-12 months. The Council therefore had to make a decision about whether to retain the Hepworths site as a potential employment allocation without the feasibility study or whether to delete it as an employment allocation simply because there was insufficient time to carry out the feasibility study recommended by the Inspector.

Following further discussions with the site owners and concerns that its de-allocation could result in the continued under use of the site, contrary to national, regional and local planning policies to make the most effective use of previously developed land in sustainable locations, it was decided, on balance, to retain and safeguard the site for the life of the 'saved' Local Plan ie until April 2009.

The Council therefore accepted the Inspector's decision that a feasibility study was required but not the timescale for undertaking it. It therefore proposed a modification to the Local Plan to indicate that the site would be safeguarded for employment use but that further work on the feasibility of bringing the site forward for employment uses would be undertaken………

The Council accepted the need for a feasibility study but it became apparent that if this was carried out as part of the Modifications process, it would have resulted in a significant delay to the adoption of the Local Plan. Bearing in mind that the Local Plan would be 'saved' for only three years and that the employment land requirement was up to 2016, it was felt that there was scope to undertake a feasibility study during the life of the 'saved' Plan in order to ascertain the likelihood of the site coming forward in the period up to 2016. In accepting the need for a feasibility study, the Council had to assess the potential harm to the development plan if it was carried out as part of the Proposed Modifications process. It was decided that, on balance, the site should remain as a Local Plan allocation for the period that the Local Plan was 'saved' and that further work on the feasibility of it being developed within the Plan period should be undertaken. Modifications were made in response to the Inspector's other recommendations relating to the area of the site and the need for a development brief."

(There is no dispute that the word "safeguard" used in this passage and elsewhere in the Defendants' documents relating to the Hepworths site was being used not in the technical sense of preserving land for possible development in a future Plan period, but rather in its more general sense equivalent to "preserve". It has not been argued that anyone was misled by the use of this term.)

15. In relation to the Stoneyholme site Ms Whewell stated:-

"The Stoneyholme site, EW1/5, was an allocation that incorporated land carried forward from the Burnley Local Plan First Review together with additional land. Part of this additional land was used as a playing field. It was recognised in the justification to the proposal that the use of the playing field for employment use was dependent upon the developer providing replacement recreation provision within the Stoneyholme area. A site for this replacement provision was identified as site CV1/1 – land at Oswald Street, Burnley.

There were two objections to the allocation of site EW1/5, Stoneyholme, for employment purposes in the First Stage Deposit Local Plan. One of these was from Sport England who were concerned that part of the allocation was a playing field and that, although the policy stated that the use of the playing field for employment use was dependent upon replacement provision, this might not be like for like replacement.

In the light of the concerns from Sport England, the Council proposed changes to the text accompanying proposal EW1/5 at Second Stage Deposit. Sport England subsequently confirmed their support for the changes made. A copy of this letter of support is attached as Appendix 5.

There was one outstanding objection to EW1/5 and this was heard at the public inquiry. This was from Lattice Property Holdings and related to the inclusion of the gas – holder in the site and restriction of uses on the site to B1, B2 and B8. In his report, the Inspector concluded that the site was needed to meet the employment land requirement and was an important component of the Daneshouse, Duke Bar and Stoneyholme Neighbourhood Action Plan (paragraph 5.6.2 of the Inspector's Report).

In March 2005, consultants Lambert, Smith, Hampton prepared a development appraisal of employment sites in a corridor stretching from Westgate to the west of the town centre and along Princess Way to the north of the centre. As a result of this appraisal, it was recommended that additions to a number of existing sites on Westgate and Princess Way should be considered as part of the employment land review recommended by the Inspector. One of these sites was EW1/5, Stoneyholme.

A larger site at Stoneyholme was therefore put forward in the Proposed Modifications. There was one objection to this proposal. This was from Graham Bolton Planning Partnership Ltd on behalf of Ribble Industrial Estates. The issues raised in this objection related to the inclusion of land that was existing residential development and a playing field. In its response to this objection, the Council indicated that the land which was currently housing had been brought forward through the Neighbourhood Action Plan for Daneshouse, Duke Bar, Stoneyholme and was linked to the housing market renewal initiative. It was also pointed out that the loss of the playing field had been addressed at Second Stage Deposit. Its inclusion in EW1/5 did not therefore raise new issues in relation to PPG17…….

It is further claimed that, as a result of the Council's actions, the claimant has been substantially prejudiced in terms of the potential use and commercial value of the land which they have an option to acquire.

The Council disagrees with this assertion. The land in question is currently in the Green Belt. When assessed for its sustainability, it was found to be a less sustainable alternative than a number of other sites, including the extended employment allocations and a number of the other sites outside the urban boundary that had been suggested by the Inspector. It is therefore probable that, had a peripheral greenfield site been required as part of the employment land review to meet the 70 hectare requirement, it would not have been the site on which the claimant has an option.

The Inspector did not recommend that the site be removed from the Green Belt and identified for employment purposes. Rather he recommended that the site be reviewed as a potential employment site and that, if there was found to be a need for additional employment land, this would constitute the exceptional circumstances to warrant the site's removal from the Green Belt".

The law

16. The statute applicable to this claim is section 287 of the Town and Country Planning Act 1990 prior to its amendment by the Planning and Compulsory Purchase Act 2004. It was, so far as material, in the following terms:-

"(1) If any person aggrieved by a unitary development plan or a local plan, minerals local plan, waste local plan or by an 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, 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."

17. Section 42 of the same Act provides:-

"(1) Where any objections have been made, in accordance with the regulations, to proposals for a local plan or for its alteration or replacement, copies of which have been made available for inspection under section 40 (2), the local planning authority shall cause a local inquiry or other hearing to be held for the purpose of considering the objections.

(2) The local planning authority may cause a local inquiry or other hearing to be held for the purpose of considering any other objections to the proposals….."

18. Regulation 27 of the Town and Country Planning (Development Plan) (England) Regulations 1999 (SI 1999 No. 3280) provides that where a local inquiry has been held the local planning 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."

19. Mr Hobson QC did not dispute that the Claimant company is a "person aggrieved" by the replacement Plan, and is not deprived of that status by the fact that it did not object at the Inquiry to the allocation of the Hepworths and Stoneyholme sites as employment land. If the Claimant can secure the deletion of either or both of the sites from the land allocated for industrial and commercial use under the Plan, that will increase Burnley's shortfall from its 70 hectare target, and thus boost the Claimant's prospects of obtaining permission for such developments on land in which they have an interest.
20. I was referred to two cases. In Stirk v Bridgnorth District Council (1996) 73 P & CR 439 at 444 Thorpe LJ held that "where a Council is both proposer and judge, the obligation to deal thoroughly, conscientiously and fairly with any objection is enhanced. Here the overall impression that emerges is that the Council closed its mind and stubbornly reiterated throughout a policy which it had been warned from the outset was doubtfully tenable."
21. There was no dispute before me about the Council's obligation to deal with objections thoroughly, conscientiously and fairly. Thorpe LJ's reference to a closed mind and stubborn reiteration of a dubious policy seems to me to be a long way from the facts of the present case.
22. In Drexfine Holdings Ltd v Cherwell District Council [1998] JPL 361 Mr Robin Purchas QC, sitting as a deputy Judge of the Queens Bench Division, after referring to the Stirk case, said :-

"Parliament included as part of the relevant statutory framework the obligation to hold a public inquiry where objections are made to the deposit plan. That ensures, where there are objections, independent scrutiny of the proposals by the local plan Inspector. The authority is obliged to consider the Inspector's report and to give a statement of its decisions and its reasons in that respect and for any proposed modifications. That is an important safeguard in the development plan process. There is not duty to hold a further inquiry into objections to modifications. The reason for that is plain. Modifications generally respond to objections to the original proposals, which have already been the subject of examination by the local plan Inspector. Where there is no new issue of objection to be considered, a second inquiry would generally be unnecessary, costly and lead to delay. However, Parliament did consider it appropriate expressly to provide the authority with the power in its discretion to hold a further inquiry. 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 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 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; 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 usual Wednesbury principles.

There is no obligation on an authority to give reasons for its decision whether or not to hold a further inquiry. However, if it does so, this Court can consider the reasons given in order to examine the basis in law for the decision."

Hepworths

23. Mr Hobson told me that this site had been allocated for employment use in the previous Local Plan, which is not in the documents before me. The question for the Inspector and the Council was therefore whether it should remain thus allocated in the replacement Plan to be adopted in 2006. No reason was given in the Council's response document for departing from the Inspector's recommendation to carry out a feasibility study before confirming the site's continued allocation, and to that extent, as Mr Hobson conceded, the Council were in breach of regulation 27 of the 1999 Regulations. But it is very significant, in my view, that Ms Whewell, in her statement of June 2006, says that a feasibility study would have resulted in a delay to the adoption of the Local Plan of 9-12 months. This estimate has not been challenged in the Claimants' evidence or submissions, nor is it suggested that Ms Whewell's evidence on this point constitutes an ex post facto rationalisation of the kind criticised in R v Westminster City Council ex parte Ermakov [1996] 2 All ER 302. I must therefore proceed on the basis that a feasibility study as recommended by the Inspector would have delayed the adoption of the entire Local Plan by 9-12 months; and that this was in fact the reason, or at least the principal reason, why the Council were asked to adopt the Plan without awaiting the feasibility study of the Hepworths site.
24. The Council were not bound by the Inspector's recommendations, and it cannot realistically be said that there was failure to give them due consideration. The reason given for departing from them in this one respect appears to me to be entirely rational. The Council considered that the undesirability of delaying the entire plan outweighed the desirability of having a feasibility study to ascertain whether the allocation of the Hepworths site was indeed realistic. They did carry out an environment sustainability assessment, and also checked that the occupiers of the site were supportive of the proposed development. I am not persuaded that this decision was wholly or to any extent beyond their powers.
25. There was, as Mr Hobson conceded, a failure to comply with regulation 27 in that the delay point was not mentioned in the table of the Council's responses to the Inspector's recommendations. But given that it was in fact the reason or principal reason for the Council's departing from the relevant recommendation, and was a rational basis for doing so; that the Claimants had no direct interest in the site; and that their own site at Shuttleworth Mead has not found favour with the Inspector nor, so far, with the Council, I do not consider that they have been substantially prejudiced by the procedural breach. The application in respect of the Hepworths site therefore fails. If in the future it should turn out that development of the Hepworths site is not feasible, the Claimants could no doubt return to the fray with added impetus, and would argue in support of any application they made for planning permission for industrial or commercial use that the Council had fallen far short of achieving its 70 hectare target.

Stoneyholme

26. As with the Hepworths site, the Claimants have no direct interest in Stoneyholme or any neighbouring land; and they did not challenge its allocation as employment land, whether at the Inquiry or at any earlier stage. The inclusion of the playing field had been an issue at the deposit stages of the Plan and the only objection had been from Sport England, whose concerns had been met by replacement playing field provision. The inclusion of an area of housing after the Inquiry following local consultation, even if regarded as a procedural short cut, caused no substantial prejudice to the Claimants. They have not set out in their evidence what their substantive objections to the inclusion of the housing in the Stoneyholme site would have been, had that proposal been included in the Inquiry change notice and thus before the Inspector. When I invited Mr Ponter to tell me what such objections would have been, he was unable to do so. This aspect of the Claimants' challenge also fails.
27. In the result the application to quash the employment chapter of the Burnley Local Plan, whether wholly or in part, must be dismissed.