England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT SITTING IN MANCHESTER

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ
		22nd June 2011

Judge Pelling:

Introduction

1. This is an application by Barrow Borough Council brought pursuant to section 113(3) of the Planning Compulsory Purchase Act 2004 ("PCPA") for an order quashing Cumbria's Minerals and Waste Development Framework Site Allocation Policies Development Plan ("the DPD") that was adopted by the respondent, Cumbria County Council, on 20th January 2011.
2. It has been agreed that if I conclude that the claimant is entitled to succeed, then I should quash the DPD, rather than make some lesser order, and if I conclude the defendant is entitled to succeed, then the application will simply be dismissed. It has been agreed that the costs should follow the event and should be the subject of a detailed assessment, unless agreed by 29th June 2011. On that basis I permitted the parties to attend this judgment hearing by their solicitors.
3. These proceedings are concerned with the inclusion within the DPD of a site referred to in the DPD and many of the antecedent documents as site M12. It is also known as the Roosecote sand and gravel quarry extension, which is a site located in the claimant's area of responsibility. Ultimately, site M12 was included in the adopted DPD as an "area of search" for sand and minerals. In essence, the claimant's case is that it should have been, but was not, consulted before the site was included or proposed for inclusion within the DPD by the defendant. The defendant maintains that the claimant was or ought to have been aware of the risk of the site being included and thus ought to have sought to participate in the process at the time, and thus has only itself to blame for not having its objections considered by the Inspector who considered the draft DPD in the statutory context to which I refer below.

The statutory framework

4. Where as here there is a district council (here the claimant) for any part of the area of a county council (here the defendant), that county council must prepare a Minerals and Waste Development Scheme: see section 16(1) of PCPA. Before such a document can be adopted it must first be submitted to the Secretary of State for independent inspection: see section 20(1) of PCPA. In practice such an examination is carried out by a planning inspector appointed by the Secretary of State and referred to in the statute and regulations as "the person appointed". Hereafter, and for convenience, I refer to the person appointed as "the Inspector". However, before the County Council concerned is permitted to submit the draft DPD to the Secretary of State under section 20(1), it must first (a) have complied with any relevant regulations, and (b) think it is ready for independent inspection: see section 20(2) of PCPA.
5. There are two functions which independent examination has to determine, being (a) whether the draft DPD satisfies the requirements of sections 19 and 24(1) of the Act and regulations made under sections 17(7) and 36 of the Act, and (b) whether the proposed document "is sound": see section 20(5) of PCPA.
6. Following submission of the DPD in draft, the person appointed by the Secretary of State will convene an inquiry. By section 20(6) of PCPA any person who makes representations seeking to change a development plan document must be given the opportunity to appear before and be heard by the Inspector. Under section 36 of PCPA the Secretary of State may make regulations in relation to the procedures to be adopted by a LPA in preparing a document to which Part 2 of PCPA applies.
7. The relevant regulations are the Town and Country Planning (Local Development) (England) Regulations 2004, as amended, ("the 2004 regulations"). Insofar as is material, the regulations provide as follows:

"Public participation in the preparation of a development plan document

25.—(1) A local planning authority must —

(a) notify each of the bodies specified in paragraph (2) of the subject of a DPD which they propose to prepare; and

(b) invite each of those bodies to make representations to them about what a DPD with that subject ought to contain...

(3) If a local planning authority propose to prepare a DPD, they must also consider whether it is appropriate to invite representations from persons who are resident or carrying on business in their area.

(4) If a local planning authority decide that it is appropriate to invite representations under paragraph (3) they must make arrangements for the purposes of inviting representation from such persons of the descriptions in paragraph (3) as they think appropriate.

(5) In preparing the DPD, the local planning authority must take into account any representations made to them in response to invitations under paragraph (1) or (4)...

Publication of a development plan document

27. Before submitting a DPD to the Secretary of State under section 20, the local planning authority must —

(a) make a copy of each of the proposed submission documents and a statement of the representations procedure available for inspection during normal office hours —

(i)at their principal office, and

(ii)at such other places within their area as they consider appropriate;

(b) publish on their website —

(i)the proposed submission documents

(ii)a statement of the representations procedure, and

(iii)a statement of the fact that the proposed submission documents are available for inspection and of the places and times at which they can be inspected;

(c) send to each of the specific consultation bodies invited to make representations under regulation 25(1) for the purposes of the DPD -

(i)a copy of each of the proposed submission documents, and

(ii)a statement of the representations procedure;

(d) send to each of the general consultation bodies invited to make representations under regulation 25(1) ...

(i) a statement of the representations procedure, and

(ii)a statement of the fact that the proposed submission documents are available for inspection and of the places and times at which they can be inspected; and

(e) give by local advertisement notice which sets out —

(i) a statement of the representations procedure, and

(ii)a statement of the fact that the proposed submission documents are available for inspection and of the places and times at which they can be inspected...

Representations relating to a development plan document

28.—(1) Any person may make representations about a DPD which a local planning authority propose to submit to the Secretary of State.

(2) Any such representations must be —

(a) made within the period which the local planning authority specify for the purposes of this paragraph; and

(b) sent to the address, and if the local planning authority think it appropriate to specify a person, the person, which the local planning authority specify for the purposes of this paragraph...

Submission of documents and information to the Secretary of State

30.—(1) The documents prescribed for the purposes of section 20(3) are —

(a) except in the case of a statement of community involvement, the sustainability appraisal report for the DPD;

(b) except in the case of a statement of community involvement, a submission proposals map if the adoption of the DPD would result in changes to the adopted proposals map ...

(d)a statement setting out - ...

(iii) a summary of the main issues raised by the representations made pursuant to either of those regulations ...

(e) a statement setting out —

(i) if representations were made in accordance with regulation 28(2), the number of representations made and a summary of the main issues raised in those representations, or

(ii) that no such representations were made;

(f) copies of any representations made in accordance with regulation 28(2)...

Consideration of representations by appointed person

31. Before the person appointed to carry out the examination complies with section 20(7) he must consider any representations made in accordance with regulation 28(2)."

The relevant facts

8. The primary facts are not in dispute between the parties and are largely a matter of record. Formal consultation on the DPD pursuant to regulation 25 was commenced in January 2009 by a letter of that date [1-325]. It included a list of sites that it was intended would be considered by the defendant and in respect of which representations were invited. M12 was not included in that list. A second round of regulation 25 consultation was embarked upon by a letter of 5th June 2009 [1-327]. The reason for this course being adopted was identified by the defendant in their letter of that date in these terms:

"This is an additional round of consultations because, as we are now looking at more sites, we need to give people another opportunity to make comments. A revised list of the sites that are being considered is attached, together with maps showing them. I have to stress that these are sites which are being considered, no decisions have been made yet about which ones the Council will be proposing."

9. M12 was identified as one of the sites being considered [1-330]. The site was also identified graphically by an area shown hatched in red on the plan attached to the letter, a copy of which appears at 1-339.
10. The claimant responded to the second regulation 25 letter by a letter of 6th July 2009. The representations made were qualified by an assumption to the following effect:

"The consultation document consists of a covering letter, a list of sites for consideration and illustrative plans for most of the sites proposed. The list of sites indicates a general type of use in some cases, but not all, and no further information or explanation is given on individual sites.

It is difficult to provide meaningful comments based on such limited information and therefore a further, more detailed consultation, still under Regulation 25, is anticipated."

11. In relation to the M12 site, the claimant's response was to the following effect:

"M12 Roosecote Quarry Extension, Rampside Road, Barrow in Furness

The proposed site, the boundaries of which appear to have no bearing on any features on the ground, is a stand alone area of land completely separated from the existing Roosecote Quarry by Rampside Road. The area is currently a prominent area of greenfield land located in an area of valuable open countryside, the development of which for sand and gravel extraction has not been demonstrated to be justified in accordance with policies CSP4, DCP3, DCP6 and DCP12."

12. On 22nd September 2009 [1-385] there was a third regulation 25 consultation. The need for this was explained by the defendant in these terms:

"I should explain that we had not planned to have this extra round of consultations. It is needed, to give people a further opportunity to comment. because additional sites have been put forward for consideration at a late stage in the preparation of the Minerals and Waste Development Framework. The consultation period is for four weeks, ending on 15 October."

13. It is common ground that the M12 site was not identified as being a site affected in this, the third, round of regulation 25 consultation.
14. A response was sent by the claimant to the defendant, but there was no response in respect of the M12 site because it no longer featured as a site in respect of which representations were invited.
15. On 9th December 2009, pursuant to regulation 27, the respondent published its proposed submission DPD which it then intended to submit to the Secretary of State pursuant to section 20 of PCPA. The M12 site was not included. In the result the claimant made representations in relation to sites that were referred to in the proposed submission DPD, but made no representations in relation to the M12 site because it was not referred to in that document. Thereafter, by a letter of 30th April 2010, the claimant was advised by the defendant, pursuant to regulation 30, that the DPD had been submitted to the Secretary of State. The submitted document did not contain any reference to the M12 site.
16. In accordance with the usual procedure, an inspector was appointed to carry out a review of the DPD. Prior to the commencement of the inquiry the Inspector held a pre-inquiry meeting. In the course of the inquiry it became clear that the Inspector was not satisfied in relation to soundness. The defendant submitted a schedule of proposed changes in order to address these issues. That document appears in the bundle at page 403. At page 408 there is included item 15, which is to the following effect, under "Policy/Para" is a reference to "Policy 6" and under the heading "Required change" there appears the following: "Add site M12 Roosecote Quarry extension, as an area of search". In the comments section appears the comment: "for consistency with the Core Strategy". At the outset of the document under the heading "Schedule of Proposed Changes" there appears a statement from the defendant to the following effect:

"This schedule lists all the changes proposed by Cumbria County Council to the Site Allocations Policies and Proposals Map DPDs in the interests of soundness and to correct/update/clarify the policies, text and appendices."

17. It is common ground that there was no consultation before the proposals contained in this document were put forward and no submissions were made by or invited from the claimant in relation to these proposals by the Inspector.
18. The Inspector's report was published on 1st December 2010. Insofar as is relevant for present purposes, the Inspector says in his introduction at paragraph (ii):

"The starting point for the examination is the assumption that the local authority has submitted what it considers to be a sound plan. The basis for my examination is the submitted draft DPD (April 2010). However, this is not the same as the document published for consultation in December 2009. This matter is addressed in my report."

19. Later in the report at paragraph 7, and under the subheading "Legal Requirements", the Inspector says this:

"The Council has clearly undertaken an extensive consultation exercise as explained in its evidence11. Anyone interested in the DPD and its progress would therefore have had ample opportunity to comment. The

Council has undertaken most of the steps advised in the Plan Making Manual although they have not always been taken in the correct order or at the right time. Moreover, no addendum was produced and the further consultation was so narrowly targeted that only those who had already

made themselves known to the Council would have been contacted; there was no general invitation for further comment. Nevertheless, despite this breach of the letter of the statute, the spirit of the Regulations (consultation to avoid any substantial prejudice) has been followed. "

This comment focuses on the consultation that had taken place prior to the submission of the DPD to the Secretary of State pursuant to regulation 30.

20. Later in the report under the heading "Issue 6: Whether the Preferred Areas and Areas of Search in Policy 6 and the MSAs in Policy 7 are consistent with the CS and justified and deliverable", the Inspector says this at paragraph 105 to 107:

"105. A similar situation arises in the south of the County where Roosecote Quarry (site M27) is the only active site. Permission expires in 2011 but, although there are further reserves that can be worked, the land and mineral owners are only prepared to allow extraction on annual licence to ensure that other important development aspirations are not prejudiced. Holker Estates propose that a further site (site M12) be included in the DPD to ensure continuity of supply in this area.

106. A consensus emerged during the Hearing session on this matter. In substance this was:

• M27 should be upgraded to a preferred area on a revised boundary to permit an application for a short term extension of time to be considered against GDCP policy DC6

• M12 should be included as an area of search on the boundary shown in SAP8 to enable a more precise area to be defined following further borehole investigation prior to a planning application being submitted.

107. The Council has recommended these changes ... In my view the quality of the geological evidence regarding site M12 submitted by Holker Estates during the examination process is sufficient to justify this approach which I endorse accordingly."

The consensus there referred to did not include the claimant, who, as I have said, was not told of the defendant's change of stance in relation to M12, nor invited to make representations in relation to the proposed inclusion of the M12 site to the Inspector.

21. The basis of the Inspector's conclusions as set out in his report are summarised at paragraph 133 of the report in these terms:

"I conclude that with the changes proposed by the Council, set out in Appendix A, and the changes that I recommend, set out in Appendix C, the Cumbria County Council Site Allocation Policies and Proposals Map DPD satisfies the requirements of section 20(5) of the 2004 Act and meets the criteria for soundness in PPS12. Therefore I recommend that the DPD be changed accordingly. And for the avoidance of doubt, I endorse the Council's proposed minor changes, set out in Appendix B except for those ... superseded by those in Appendix C."

Discussion

22. The essence of the claimant's case is set out in paragraph 16 of the grounds in these terms:

"It is contrary to the Respondent's powers contained in the 2004 Act and the 2004 Regulations and contrary to procedural requirements for a new site, or a previously removed site, to be added to the DPD after the publication stage without repeating the publication stage or carrying out equivalent consultation."

In support of that analysis the claimant relies upon the defendant's own letter of 30th April 2010 to Holker Estates, who had been pressing for the inclusion of the M12 site for their own commercial interests and reasons. In that letter the defendant said:

"Site M12 was removed from the Site Allocations Policies at an earlier stage of consultation and could not now be reinstated without a further round of public consultation..."

It is submitted also that the approach adopted before the Inspector was contrary to the approach set out in the Planning Inspectorate's own guidelines for inquiries of the sort being undertaken, and in particular reliance is placed upon the following in that document:

"Post submission LPA changes to a submitted DPD

5.21. The Inspector will take the published DPD (and if relevant, the addendum submitted with the DPD) to be the final word of the LPA on submission.

5.22. The intention is that LPAs will not seek changes after submission because the frontloading process should have considered the full range of options and policy approaches. Therefore, there is a very strong post submission expectation that changes will not be necessary and this is a key premise of delivering the streamlined examination timetable. LPAs should only seek changes after submission in very exceptional circumstances. The provision for changes after submission is to cater for the unexpected and is not intended to allow the LPA to complete or finalise the preparation of the DPD.

5.23. Such changes should, where appropriate, be subject to the same process of publicity and opportunity to make representations as the DPD. If the change would alter the thrust of a policy, extend the range of development that a policy would apply to, delete a policy or introduce a new policy, two very important considerations need to be borne in mind. First, the change must not undermine, or possibly undermine, the sustainability credentials of the plan. Second, is the change a matter that has been subject to adequate community engagement? If there is a problem with either of these matters the change may, in some instances, be acceptable provided the LPA has taken appropriate steps to demonstrate that the sustainability credentials of the plan are intact or that further adequate community engagement has occurred.

5.24. This process may generate fresh representations. In the interests of fairness, the Inspector will extend the right to appear at the hearings to those who seek an amendment which follows directly from the LPA's proposed post submission changes ...

Post submission Inspector changes to a submitted DPD

5.26. The Inspector examines the DPD ... 'as submitted'. Where the Inspector identifies the need for changes, the changes and likely extent of changes should be fully discussed at the hearings.

5.27. If the Inspector considers that the DPD (and/or addendum) may require changes after submission to make it sound, he/she must be satisfied that requirements for public consultation and sustainability appraisal have been met with regard to the changes (as set out in paragraph 5.23 above). Where the Inspector has identified that large numbers of changes are needed, this can make the examination and the reporting process considerably more complex and may point to cumulative flaws that amount to the 'as submitted' document being unsound.

5.28. Where the Inspector identifies changes necessary which relate to presentational flaws or matters of clarification, the LPA may be encouraged to take responsibility for undertaking work of an editorial nature ..."

The point made by the claimant, in essence, is that the process identified in the guidelines appears not to have been adopted.

23. The defendant's submission was, in essence, that the defendant was entitled to adopt the DPD it had adopted because it had been approved and because the Inspector knew that the M12 site had been considered previously and had been withdrawn following representations. It was further submitted that in any event the claimant knew that Holker Estates were seeking to have the M12 site included and thus the claimant should have applied to the Inspector to be heard on the issue, even though at the stage when the pre-inquiry meeting was held by the Inspector there was no expectation that the defendant would seek to include once again M12 within its proposed DPD.
24. I reject the defendant's submissions as misconceived and beside the point. The claimant was entitled to assume that the defendant would seek to uphold its proposed DPD, and that if changes were proposed they would not be considered without either a consultation process taking place or at least notice of what was proposed being given to the claimant as a person that had objected previously to the inclusion of the M12 site and the claimant being given an opportunity to make submissions concerning the inclusion of the M12 site to the Inspector. The underlying assumption that applies in this area of planning law is that only those objecting to what the LPA proposes in its submitted DPD document have a right to be heard before the Inspector, and that those who do not object will have their relevant interests represented by the LPA before the Inspector because the LPA would be seeking to uphold its own document. Indeed, this approach was reflected in what the Inspector said at the pre-inquiry meeting, where he is recorded as saying under the heading "Scope of the Examination and Inspector's Role" at the third bullet point the following:

"The advice in ED54 para 3.5 applies in respect of changes recommended by both the Council and representors. As this is a Sites Allocation DPD it was emphasised for those promoting challenger sites that the Examination is not a beauty contest between competing sites. For such a site to succeed and be recommended for inclusion in the Plan it is necessary to show that the Plan as submitted is unsound and would only become sound if the site promoted is included. Furthermore, limited weight only can be given to a proposed change that has not been subject to consultation procedures and Sustainability Appraisal (SA). Equally, if the exclusion of a site, without replacement, is sought, it will have to be shown that the Plan would remain sound if this were to be recommended."

The Inspector continued in the next bullet point as follows:

"The Inspector is required by law to examine the soundness of the plan. However, it is the Council's Plan and he has no wish to rewrite it or impose any views he may have about it."

25. Although some reliance was placed by the defendant on the suggestion that because the claimant had submitted a response to the second regulation 25 consultation it follows that they should have sought to make recommendations to the Inspector, this approach is at odds with the statutory structure as set out in the statute and regulations, at any rate in relation to a proposal that had been removed by the local planning authority before the regulation 28 stage and did not feature in the documents submitted pursuant to section 20 of the 2004 Act. The effect of what was submitted by the defendant would, if right, defeat the purpose of "front loading" the consultation process, which is designed, amongst other things, to control the length and therefore the cost of the inquiry stage, as well as streamlining the whole process so as to avoid an inappropriate amount of delay.
26. I reiterate that the purpose of the section 20 examination was to establish whether the document submitted is sound. The obligation of the person appointed, the Inspector, is to make recommendations and to give reasons for them: see section 20(7). The recommendation he makes must be in relation to the document that the LPA has submitted for independent examination. Section 20(6) emphasises that it is the document that has been submitted that must be considered by providing "any person who makes representations seeking to change a development plan document must, if he so requests, be given the opportunity to appear before and be heard by the person carrying out the examination". It is also emphasised by regulation 31, which requires the Inspector to take account only of representations made pursuant to regulation 28. Clearly, if a proposal made at the regulation 25 stage has been dropped by an LPA, in context no-one would be expected at regulation 28 stage to make a submission in relation to such a proposal because such a proposal was not being advanced by the local authority. The statute does not contemplate post submission changes; the regulations do not either. The Inspectorate guidance does, but only in extremely limited circumstances, and subject to the emphasis placed in the document on the relevant safeguards that have to be made.
27. I express no view as to whether the guidance is correct and can be justified by reference to the statute and regulations. It is not necessary for me to consider that issue in the context of this case. However, if the guidance is correct in assuming that changes can be made in the course of an inquiry, then in my judgment, a very heavy onus rests on the LPA concerned to consider whether such proposals can, in all conscience, be put forward without further consultation, or possibly the adjournment of the inquiry, with proper notice being given to a previous objector so as to permit the previous objector to make representations to the Inspector. There is no evidence before me that this issue was ever seriously considered, as it ought plainly to have been in the circumstances of this case.
28. I now return to section 113(3) of the 2004 Act. In the circumstances of this case the claimant has satisfied me that the threshold conditions imposed by that provision are satisfied because there has been a failure to comply with the procedural requirement. The failure consists of the application by the defendant to include the M12 site in the DPD at the examination stage when it had not been included either in the last of the regulation 25 consultations or in the regulation 28 consultation and when the LPA had apparently accepted the objection of the claimant made in relation to the M12 site at the second regulation 25 consultation stage.
29. The result of this is that the interests of the applicant on behalf of the public has been substantially prejudiced because the M12 site has been included in an adopted DPD without giving the claimant any opportunity to object to its inclusion on soundness grounds, which is, at the end of it, the basis on which it objects to the inclusion of this site. In addition, in the circumstances I conclude that the adopted DPD is not within the relevant power because it has been procured without the relevant consultation procedures being adopted, at least to the extent that it includes the M12 site.

Conclusion

30. In those circumstances, and in conformity with the agreement between the parties as to what was to happen if I concluded as I have set out above, I quash the DPD. I would add that I had considered whether a narrower approach might have been preferable, which involved remitting the DPD back to the Inspector, but neither party considered that to be an appropriate way to proceed. It follows that the defendant must pay the claimant's costs, to be the subject of a detailed assessment unless agreed by 4 pm on 29th June 2011.