QUEEN'S BENCH DIVISION
33 Bull Street, Birmingham B4 6DS
B e f o r e :
| THE QUEEN ON THE APPLICATION OF
(1) PERSIMMON HOMES LIMITED
(2) BDW TRADING LIMITED
|- and -
|VALE OF GLAMORGAN COUNCIL
(instructed by M & A Solicitors LLP) for the Claimants
MISS M. ELLIS QC AND MR R. GREEN
(instructed by Vale of Glamorgan Council) for the Defendant
Hearing dates: 2 & 3 March 2010 at the Cardiff Civil Justice Centre
Crown Copyright ©
Mr Justice Beatson:
The 25 March 2009 decision:
The 3 February 2010 decision:
The legislative framework
Policy guidance given by the Welsh Assembly Government:
"9.2.7 Any proposals for new settlements should be promoted through, and fully justified in, the development plan. Plans should state clearly the contribution which developers will be expected to make towards provision of infrastructure, community facilities and affordable housing. New settlements on greenfield sites are unlikely to be appropriate in Wales, and should only be proposed where such development would offer significant environmental, social and economic advantages over the further expansion and regeneration of existing settlements."
"9.2.8 In identifying sites to be allocated for housing in development plans, local planning authorities should follow a search sequence, starting with the re-use of previously developed land and buildings within settlements, then settlement extensions and then new development around settlements with good public transport links."
The factual background and the decision:
"I will have no specific involvement in these sites and their promotion through the LDP. To this end I have already referred matters relating to these sites to my Head of Service, Rob Thomas."
"… put in place procedures to liaise directly with the case officer … on any matters directly involving Persimmon Homes (Wales). Procedures would include any mail from the company relating to any policy issues being forwarded direct to myself for actioning and any requests for advice from other groups within my division being issued directly to the principal planner as opposed to Emma directly. This is the approach I have taken in the past."
"to concentrate development opportunities in Barry and the south east zone, the St Athan area, to be a key development opportunity. Other sustainable settlements to accommodate further housing and associated development."
"Llandow Newydd would be included in 3 of the 9 survey options and Defence Estates will have the opportunity to comment. The VoG Preferred Strategy may not include Llandow Newyyd. Current government guidance is that a new settlement is a last resort."
"what the [appraisal] needs to do is to provide this analysis, and even if after this analysis and testing it is still the case that three options are comparable, at least we can show that our decision to go for option 5 (even if it is the least sustainable) is based on a 'informed' decision that has weighed up the levels of mitigation required for each of the options…"
Another comment states that:
"The introduction paragraph needs to be written in the past tense – the strategy is already written, amend to say something along the lines of to inform the process."
Mr Davies submitted these showed a predetermination that the preferred option was to be option 5.
"and having knocked out the options that include a new settlement based on the fact that this would be contrary to national guidance this shows 5 and 7 as being the two favourable options in terms of sustainability (hurrah!!), but I think what we now need to do is to clarify further the difference between 5 and 7 by indicating that option 7 whilst identifying sustainable settlements would also disperse development among settlement based on the current population of each settlement…"
Mrs Harvey's response to this email asked Mr Wallace to confirm that a new settlement would be "totally contrary" to Welsh Assembly Government guidance. Mr Wallace replied that the answer was theoretically "no", but it was "difficult to justify a new settlement on purely meeting housing figures".
"on a 'without prejudice' basis, if we decide to alter the LDP strategy to include Llandow Newydd there would be a need for re-consultation".
He also stated that once the Hyder work has been done "it will almost certainly be necessary to meet with Hyder to discuss any points or comments which may need further clarification". Mrs Harvey's evidence is that she expected to have queries on Hyder's report in view of the difficulties they had with their previous report.
"in general terms the findings of the assessment are not dissimilar for option 8. That said, it has been possible to more confidently predict some of the likely outcomes for option 8A based on the proposal for the Llandow Newydd settlement which provides detail regarding elements such as housing allocations, infrastructure provisions and an outline of the expected facilities associated with the development".
"There are 'green' areas, but also significant areas of previously used land, there are few landscape features of merit."
"I appreciate you may not agree with the [second draft] but our role is to inform and advise based on our professional opinion and this is what we have done… We would be reluctant to represent your authority at any public enquiry where we have serious reservations on a range of issues with regard to the Llandow new settlement. We must emphasise that the work undertaken by Hyder on behalf of the Vale of Glamorgan has been without any third party influence."
"I have worked in planning in South Wales for over 30 years and have never taken a commission or represented a client at a public enquiry where I had no confidence that, at least, some sound planning arguments could be developed. I have a long-standing knowledge of the Llandow area [and referred to teaching his children to drive there]. I cannot agree with the arguments that [Mrs Harvey] and yourself are putting forward".
"[I]t is not Hyder's role just to prepare reports that reflect client preconceived views, but to offer independent advice, which of course, can or cannot be taken on board. Hyder has had a consistent view throughout the SA/SEA with regard to a new settlement and the identification of a site has enabled some of the assessment work to be consolidated. The views with regard to option 8A are not just my views but those of all the team. After detailed consideration of your comments presented both at the meeting and on the report I would therefore agree that it would be difficult for Hyder to represent the Vale of Glamorgan at any future public enquiry."
"of extremely poor quality and is often late". She also stated that "once" Hyder's contract was terminated "most of the remainder of the [sustainability appraisal] work is handled in-house with a consultant to independently review and question what we have done."
"It is apparent that your views on both the Llandow site and on the main sustainability appraisal are in conflict with those of the Council in several respects, to the point where you now feel that your company will be unable to represent the Council in any future public examination relating to the LDP. Representation at such an examination was of course a requirement under the terms of your company's engagement."
"The probable reality, of course, is that they were too much of a 'critical friend' and would not bend to officers' pre-determined views against the Llandow option. They were then sacked after having been advising for some years, and another firm of consultants parachuted in at the very last minute. The corollary of this of course is that if Hyder Consulting were no good in their assessment of option 8a then they were no good on all of the Draft Preferred Strategy option work, and therefore the whole option appraisal process should go back some years to stage one."
Mr Lawley copied this three page letter to all Cabinet members. By then, Councillor James had, on 29 November and 1 December, written to Mr Thomas raising important points about the report and instructed that it be withdrawn from the agenda for the meeting.
"The initial options appraisal report identified options 5, 7 and 8 for further consideration, whereas the refined assessment methodology has only identified options 5 and 7. A key reason for this different outcome has been the identification of mitigation measures; the relationship between mitigation measures inherent within each option; and the influence that mitigation measures may have on each option."
The revised report re-confirmed (see paragraph 6.4) "the council's view that option 5 would provide the most appropriate spatial framework for addressing the economic, spatial and environmental issues affecting both the urban and rural vale over the LDP period". Paragraph 8.13 states:
"For the remaining new settlement options 8 and 8a, the outcomes were similar in that they would both produce some positive benefits in both urban and rural areas, although the overall [e]ffect would be mixed across the vale. However, the identification of a new rural settlement at Llandow… within option 8a allowed the appraisal to consider more site specific issues that resulted in the appraisal identifying more mixed benefits and negative outcomes within the rural vale than option 8. For instance, a significant proportion of the Llandow Newydd site is classified as subgrade 3A, good quality agricultural land and the site is poorly served by public transport. However, common to both options, was the limited ability to address outcomes through mitigation due to the relationship between the location of a new settlement and the ability to provide equal benefits across the wider area, including reduced opportunities for new development to address issues where they exist."
"In terms of specific issues relating to Llandow Newydd, the promoters claim that the site is predominantly brownfield. However, it should be noted that existing businesses and trading estates (that they include in their candidate site) are not within their ownership and do not therefore form part of their proposals, although they do have some element of control over future proposals relating to the trading and business estates. The site is therefore predominantly greenfield."
"In order to fully consider the representations [on option 8a] the council, has drafted for consideration and inclusion within the deposit draft plan, a revised options appraisal report. The council has been assisted with this review by consultant Levett-Therivel."
It also states that:
"As part of your officers' consideration of this additional strategic option the council appointed Reading Agricultural Consultants to validate the representor's agricultural land survey undertaken by Kernon Countryside Consultants. The Reading Agricultural Consultant's study concludes in summary at paragraph 6.1.1 that 'the agricultural land on the application site is classified as entirely subgrade 3B (i.e. moderate quality) agricultural land or lower by Kernon Countryside Consultants, but the verification survey conducted by Reading Agricultural Consultants indicates that a significant proportion of the site should be classified as subgrade 3A, good quality agricultural land'."
"Planning Policy Wales (2002) advises against proposals for new settlements if sufficient land is available within an adjoining existing settlement. Planning Policy Wales (2002) refers to the need to promote a sustainable settlement strategy and the Draft Preferred Strategy achieves this by concentrating development in and around settlements in the south east zone as well as other sustainable rural settlements."
"The agricultural land quality of the site is considered above, but in short a significant proportion of the site is classified as grade 3A which falls within the best and most versatile land as classified in Planning Policy Wales (2002) and should be protected save for in exceptional circumstances. No such exceptional circumstances exist in this case."
"The DAW have also offered advice to officers on the issue of new settlements and state among other things that 'new settlements should only be proposed where such development would offer significant environmental, social and economic advantages over the further expansion or regeneration of existing settlements.[] No such advantages exist in the case of the vale, particularly in view of the sustainable nature of the Draft Preferred Strategy clearly demonstrated by the draft SA."
Ground 1: Insufficient or misleading information in the officers' report:
"[P]art of a planning officer's expert function in reporting to committee must be to make an assessment of how much information needs to be included in his or her report in order to avoid burdening a busy committee with excessive and unnecessary detail."
"It is important that the principal issues and the key information are put to [members], but it is not necessary, or indeed desirable that the report should be exhaustive. Plainly there will always be room for dispute as to whether the report should in certain respects have been fuller, or whether certain guidance should have been expressly referred to… but it is not for the court to second guess the officers…"
Grounds 2 and 3 - Pre-determination, bias and conflict of interest
"it is clear from the authorities that the fact that members of a local planning authority are 'predisposed' towards a particular outcome is not objectionable" and that "what is objectionable… is 'predetermination' in the sense … that a relevant decision maker made up his or her mind finally at too early a stage."
While the background in this case shows a clear policy preference against a new settlement, the examples I have given show that the officers' minds were not closed. Longmore LJ stated the test was extremely difficult to satisfy. I do not consider that it has been satisfied in this case.
Ground 4: Inadequacy of statutory consultation
The 3 February 2010 decision:
"At the heart of the case is the failure of officers to ensure that Cabinet had full cognisance of a sustainability appraisal carried out by Hyder into option 8a before it came to a decision."
That issue was addressed in the later decision. Moreover, Mrs Harvey took no part in the preparation of the report for that decision.
Note 1 The corresponding paragraphs in the unrevised version of PPW 2002 (9.2.7 and 9.2.13) are identical save that they refer to “the UDP” rather than “the development plan”, and 9.2.7 (now 9.2.8) has a final sentence: “They should seek only to identify sufficient land to meet their housing requirement”.
Note 1 The corresponding paragraphs in the unrevised version of PPW 2002 (9.2.7 and 9.2.13) are identical save that they refer to “the UDP” rather than “the development plan”, and 9.2.7 (now 9.2.8) has a final sentence: “They should seek only to identify sufficient land to meet their housing requirement”. . [Back]