QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of HOWSMOOR DEVELOPMENTS LIMITED AND OTHERS
|- and -
|SOUTH GLOUCESTERSHIRE COUNCIL
Richard Drabble QC and David Forsdick (instructed by Andrew Griffiths, Group Manager & Solicitor, Legal & Democratic Services, South Gloucestershire Council) for the Defendant
Hearing dates: 25th October 2007 and 17th & 18th January 2008
Crown Copyright ©
Sir George Newman :
Emersons Green East
The Planning History
3. (1) In 1985 the Avon County Structure Plan identified the Emersons Green development area as a major mixed development.
(2) The Avon County Structure Plan was replaced by a Joint Replacement Structure Plan which was formally adopted on 23rd September 2002. The Joint Replacement Structure Plan identified Emersons Green as one of the key strategic areas for development in the locality and policy 13 of the Plan earmarked the site as a major residential-led mixed use development.
(3) In January 2006 the South Gloucestershire Local Plan ("the Local Plan") was adopted. It developed the policies and proposals set out in the Structure Plan.
(4) The Local Plan was subject to a public inquiry into objections between June 2003 and September 2004. The Inspector heard the inquiry and published his report in December 2004.
(5) Policy M2 of the Local Plan provided detail on development proposed for the site, including the different uses of the site, the approximate size of the area allocated for each use and for transport around the site. Policy M2 is a strategic allocation to meet forecast housing needs in the area. The Plan also made provision for the development of a supplementary planning document for the site, referred to as the Brief. The Brief is now under challenge in these proceedings.
Development Policies Relevant to Emersons Green East
(1) The Regional Spatial Strategy for the region, currently RPG10 Regional Planning Guidance for the South West (2001);
(2) The adopted Structure Plan, namely the Joint Replacement Structure Plan for Bath and North East Somerset, Bristol, North Somerset and South Gloucester (2002);
(3) The adopted Local Plan, namely South Gloucestershire Local Plan (2006).
Was There An Allocation In The Development Brief?
"… a major mixed use of development comprising a science park, other business and industrial uses to meet local employment needs and residential development with associated facilities integrated into the wider Emersons Green residential development west of the Ring Road. The development will be planned on a comprehensive basis to integrate the different land uses and to maximise provision for public transport, walking and cycling."
Policy 13 also provided that there should be a "convenient public transport system within and to the Emersons Green developments by ensuring, inter alia, "[a] reduction in the physical barrier created by the Avon Ring Road between the Emersons Green developments by providing safe and easy access across the road at convenient points for buses and pedestrian and cycle movements". It is submitted by the Claimants that in these parts of the Structure Plan the planning policies are being advanced by reference to the wider Emersons Green development and not by reference to Emersons Green East in particular. The Council submit that, upon a proper interpretation of Policy 13, the "integrated policy approach towards transport and development …" was to be implemented in Emersons Green East.
The Local Plan
"Similarly, on the north eastern fringes of Bristol the strategy continues to acknowledge the potential for land at Emersons Green to accommodate science based industries which compliment existing activities and companies in the Bristol North Fringe. However, as with the northern fringe, the emphasis lies with creating a more "balanced" pattern of development which encourages higher levels of residential development and the introduction of local facilities and enhanced public transport, cycling and walking measures, which should achieve more 'self sufficiency' than hitherto".
The acknowledgement of the development of "science based industries" is in conformity with Policy 13 (see previous paragraphs).
"T5 PROPOSALS FOR MULTI-MODAL INTERCHANGE SITES (PARK AND RIDE/PARK AND SHARE/KISS AND RIDE) WILL BE PERMITTED PROVIDED THAT EACH PROPOSAL:A. ENCOURAGES MODAL TRANSFER FROM AND A REDUCTION IN THE USE OF THE PRIVATE CAR; ANDB. ENCOURAGES THE USE OF PUBLIC TRANSPORT FOR LONGER JOURNEYS;C. …D. …E. PROVIDES ACCESS TO AND FACILITIES FOR WALKERS, PEOPLE WITH DISABILITIES, MOTORCYCLISTS AND CYCLISTS; ANDF. COMPLEMENTS AND CONTRIBUTES TO THE MULTI-MODAL INTERCHANGE STRATEGY AND TO OTHER EXISTING OR PROPOSED PUBLIC TRANSPORT SERVICES; ANDG. …H. …I. …"
"A major part of the Council's Transport Strategy is the implementation of the Multi-modal Interchange Strategy. This consists of a series of sites, which will cater for the interchange between different types of transport, for example bus, car, cycle, pedestrians and taxis. In general these sites will be relatively close to the home locations of transport users and sited along key public transport corridors, serving both employment areas of South Gloucestershire and Bristol City….".
"The initial phased implementation programme for the strategy consists of:
- A Multi-modal Interchange site within the Emersons Green development, to be implemented by 2007/08;
- A Multi-modal Interchange site at Parkway North, to be opened by 2006/07; and
- A Multi-modal Interchange site at Cribbs Causeway, to be opened in 2007/8."
"Specific sites for the Emersons Green and Yate area multi-modal interchange facilities are currently being investigated and therefore it is not possible at this stage to include the sites on the Proposals Map….".
Thus the Proposals Map does not show a precise location for an MMI. However, Figure 6.3 headed, "Illustration of Multi-Modal Interchange Strategy", which follows paragraph 6.75, does show an area of search for an MMI at Emersons Green East. It is beyond argument that from the Figure the MMI for Emersons Green is located in Emersons Green East. To this the Claimants reply that this part of the Local Plan is permissive and does not lay down a requirement. There is an element of common ground between the Claimants and the Council on this. The Council does not maintain that the siting of the MMI in Emersons Green East on the proposals map is a specific site allocation for the MMI in Emersons Green East. The Council's case is that, on a proper reading of the Local Plan, the Local Plan has allocated the MMI to Emersons Green East but subject to the specific site being decided according to development proposals, at a later date. In this regard, the Council relies upon paragraph 6.74 which states that specific sites are currently being investigated.
"Policy T5 will be used to assess both proposals coming forward which are part of the South Gloucestershire Multi-modal Interchange Strategy, as well as those not forming part of the Council's Strategy."
Policy M2 of the Local Plan
"ON 177HA OF LAND AT EMERSONS GREEN, EAST OF THE A4174 AVON RING ROAD, AS DEFINED ON THE PROPOSALS MAP. THE PROPOSAL WILL COMPRISE: …"
Paragraphs A. to E. inclusive of Policy M2 comprise specific allocations of hectares to various uses to which the development relates.
"THE REMAINDER OF THE SITE TO BE USED FOR THE PROVISION OF A RANGE OF LOCAL FACILITIES INCLUDING LOCAL SHOPPING, HEALTH CARE, PRIMARY EDUCATION AND OTHER COMMUNITY FACILITIES, FORMAL AND INFORMAL OPEN SPACE, NATURE CONSERVATION AREAS, BALANCING PONDS AND ROADS.DEVELOPMENT WILL BE PLANNED ON A COMPREHENSIVE BASIS, DESIGNED AND PHASED TO ENSURE MAXIMUM PRACTICAL INTEGRATION BETWEEN THE DIFFERENT USES AND PROVISION OF ANCILLARY FACILITIES AND SUPPORTING INFRASTRUCTURE. IN PARTICULAR, PROVISION WILL BE MADE FOR:
- A COMPREHENSIVE NETWORK OF SAFE AND CONVENIENT FOOTPATH AND CYCLEWAYS LINKING ALL THE USES AND DESTINATIONS BEYOND THE SITE, WITH PARTICULAR REFERENCE TO THE DISTRICT CENTRE TO THE WEST OF THE RING ROAD;
- A HIGH STANDARD OF BUS PENETRATION AND SIGNIFICANTLY IMPROVED 'RADIAL' SERVICES TO EAST AND CENTRAL BRISTOL AND YATE AND ORBITAL SERVICES LINKING TO MAJOR EMPLOYMENT DESTINATIONS AND TRANSPORT INTERCHANGES IN THE NORTH FRINGE."
"The service improvements will need to be supported by appropriate infrastructure investment to guarantee attractive journey times, facilitate easy access to bus stops, and make available real time bus timetable and route information in order to maximise the use of buses. It is envisaged that a high quality facility for interchange between public transport and car, cycle and walk modes will be provided within the overall development to facilitate express commuting bus services into Bristol and the Bristol North Fringe."
"In order to achieve high standards of design and all the other objectives set out above, the Council and landowners jointly commissioned independent consultants to hold a workshop involving a range of local stakeholders and prepare a 'Concept Statement' as a basis for wider public consultation prior to the preparation of a Supplementary Planning Document for this site. The Concept Statement has been approved for Development Control purposes and as a basis for the preparation of a development brief, which is in preparation. The Council is also pursuing the preparation of a detailed illustrative master plan through the Development Control process."
It is relevant to note that the Concept Statement, endorsed in the Local Plan as the basis for the Brief required by the Local Plan, had been approved by the time the Local Plan was adopted. The Concept Statement summarises the position in relation to Policy 13 of the Adopted Joint Replacement Structure Plan and in my judgment correctly sets out that it contains strategic proposals for Emersons Green East.
"3.4 In order to ensure that the development is planned on a comprehensive basis, and in order to achieve high standards of design, the emerging SGLP requires the preparation of a supplementary planning document (SPD 4EGE). On 2nd January 2001 the Executive Member for Planning, Transportation and Strategic Environment approved a two stage process for the preparation of supplementary planning guides for the major allocated sites (including EGE). The first stage of the process involved the preparation of a concept statement. The approved concept statement was then to form the basis of stage 2, the preparation of a more detailed development brief. For the avoidance of doubt, where differences arise between the approved concept statement and this brief, the brief will take precedence in determination of planning applications."
The Concept Statement Itself
"The development will have to ensure a high standard of bus penetration through the site, and significantly improved radial services to east and central Bristol and Yate, and orbital services linking to major employment destinations and transport interchanges in the north fringe. A comprehensive TA will be required. High quality interchange required within the site".
In the same section but a little later:
"The bridge link between the two parts of Emersons Green is a critical element in integrating the community. The Council will promote the idea of a design competition for this element of the development."
The Material Parts of the Development Brief
"The illustrative master plan document will be prepared by the developers and submitted to SGC as part of the application for outline planning permission."
"(1) To define core development objectives for EGE, and to refine and develop the design principles established through the concept statement process.
(2) To set out an indicative framework plan for the development which together with the Brief as a whole will inform the preparation of a more detailed illustrative master plan document.
(3) To promote innovation in residential, commercial and infrastructure design with a view to achieving more sustainable forms of development.
(4) To identify requirements for essential facilities and services, together with responsibility for their provision where practicable.
(5) To ensure the successful and consistent implementation of all design objectives by serving as a robust guide for development control decisions. The adopted development brief will together with the approved illustrative master plan document, be the basis for determining planning applications and concluding associated legal agreements".
"The provision of a new bridge is essential if the development is to satisfy the Policy 13 of the adopted Joint Structure Plan, Policy M2 of the SGLP and Concept Statement requirement for maximum practical integration between different uses."
"The MMI will be provided within the EGE development. In terms of its location within EGE the MMI will be situated:
- on the stage 1 bus loop (see Figure 13, Public Transport Infrastructure within EGE);
- close to the Avon Ring Road and the Rosary Roundabout, to avoid drawing MMI traffic into the heart of EGE; and
- close to the new bridge link from EGE to the District Centre."
The Inspector's Report and the Planning Inquiry into Objections to the draft South Gloucestershire Local Plan
"With the plan committed to an ongoing provision of sites diagrammatically identified in Figure 6.3, and apparently open to other justified proposals that meet the policy criteria, I do not see that picking out "snapshot" sites for special treatment at the time the plan is adopted is either logical or particularly helpful, especially as there is no suggestion that the land use will need safeguarding prior to a grant of planning permission."
Clearly the Inspector was of the view that Figure 6.3 was indicative and not definitive. There seems nothing in the references to which I have been taken in the proceedings before the Inspector or his Report to indicate that he was addressing a position in which the lack of specificity was to be regarded as permitting or envisaging the MMI in a part of the development other than Emersons Green East. The overall impression I draw from this situation is that it seems likely that there were others who formed the view that the Local Plan policies gave rise to an interpretation that the MMI and the pedestrian bridge were to be in Emersons Green East.
Conclusion On Whether There Has Been An Unlawful Allocation In The Development Brief
"A Multi-modal Interchange site within the Emersons Green development to be implemented by 2007/8".
The Plan must be read in its entirety.
"The local plan shall be read as a whole. Proposals will be considered against all relevant policies including design environmental criteria set out in chapters 3 and 4".
One must be guarded in detailed planning documents in attributing weight to, for example, an individual statement in the Local Plan but, contrary to the Claimants' suggestion, it does not detract from the policy allocation which the Proposals Plan itself presents. That is because the Proposals Plan is in itself a development of a policy statement in relation to Emersons Green East.
The Sustainability Appraisal Forming Part of the Development Brief
"This Report has been written in accordance with government guidance and the European Strategic Environmental Assessment Directive. It has also drawn on the strategic sustainability appraisal of the draft South West Regional Spatial Strategy."
A little later the appraisal states:
"This SA Report uses those objectives to appraise the requirements and development brief objectives set out in the Emersons Green Development Brief. It does not appraise the merits of the particular site, nor does it repeat the work that was undertaken as part of the Sustainability Appraisal of the South Gloucestershire Local Plan."
"1. Where an environmental assessment is required under Article 3(1), an environmental report shall be prepared in which the likely significant effects on the environment of implementing the plan or programme, and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme, are identified, described and evaluated. The information to be given for this purpose is referred to in Annex 1.
2. The environmental report prepared pursuant to paragraph 1 shall include the information that may reasonably be required taking into account current knowledge and methods of assessment, the contents and level of detail in the plan or programme, its stage in the decision-making process and the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment."
"3. The obligation referred to in Article 4(1) [being the General Obligations] shall apply to the plans and programmes of which the first formal preparatory act is subsequent to the date referred in paragraph 1 …".
The Claimants submitted that since the Local Plan had not been subject to the SEA provisions, the Council was obliged to carry out an assessment by reference to each of the sub-paragraphs of Annex 1 of the Directive, in effect, submitting the policies in the Local Plan to the requirements of the Directive. I cannot accept that argument. It ignores the terms of the Directive (Articles 4, 5 and 13) and amounts to an attempt to give the Directive retrospective effect by submitting policies developed before the effective date of the Directive to the new regime.
(1) there was no requirement to assess the rationale for and alternatives to the development of Emersons Green East;
(2) there was no requirement to assess the environmental consequences of the allocation of the development proposals under consideration and the extent to which they could be mitigated;
(3) there was no requirement to justify the overall mix of development; or
(4) justify or assess the infrastructure requirements set out in the Local Plan;
(5) there was no particular scheme to assess.