QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| (1)Save Historic Newmarket Ltd
(2) Tattersalls Ltd
(3) Unex Group Holdings Ltd
(4) Jockey Club Estates Ltd
(5) Newmarket Trainers' Federation
(6) Godolphin Management Company Limited
(7) Darley Stud Management Company Ltd
|- and -
|(1) Forest Heath District Council
(2) Secretary of State for Communities & Local Government
Edward Richard William Stanley, 19th Earl of Derby ("Lord Derby")
Mr Mark Lowe, Q.C. & Mr Michael Bedford (instructed by the Solicitor to the Council) for the First Defendant
Mr Jonathan Karas, Q.C. (instructed by Lawrence Graham) for the Interested Party
Hearing dates: 22 & 23 February 2011
Crown Copyright ©
Mr Justice Collins:
Regulation 6(3) provides that a document of the description in Paragraph (1)(a) is to be referred to as a Core Strategy. Regulation 6(1)(a) refers to any document containing statements of –
"(i) the development and use of land which the local planning authority wish to encourage during any specified period;
(ii) objectives relating to design and access which the local planning authority wish to encourage during any specified period;
(iii) any environmental, social and economic objectives which are relevant to the attainment of the development and use of land maintained in paragraph (i);
(iv) the authority's general policies in respect of the matters referred to in paragraphs (i) to (iii) …"
"4.5. It is essential that the Core Strategy makes clear spatial choices about where developments should go in broad terms. This strong direction will mean that the work involved in the preparation of any subsequent DPDs is reduced. It is also means that decisions on planning applications can be given a clear steer immediately.
4.6. Core strategies may allocate specific sites for development. These should be those sites considered central to achievement of the strategy. Progress on the Core Strategy should not be held up by inclusion of non strategic sites."
In 4.7 the point is made that the Core Strategy looks to the long term and in general will not include site specific detail. It may be preferable for a site area to be delineated in outline rather than detailed terms and the detail can be dealt with in subsequent planning documents which do deal with the particular in the light of the general approach set out in the RSS and the Core Strategy.
"(a) the document is not within the appropriate power;
(b) a procedural requirement has not been complied with."
S.113(6) enables the court to quash the relevant document wholly or in part and generally or as it affects the property of the applicant if the court is satisfied
"(a) that a relevant document is to any extent outside the appropriate power;
(b) that the interests of the applicant have been substantially prejudiced by a failure to comply with a procedural requirement."
There is thus no need to show prejudice to the applicant if s.113(6)(a) applies, but it is required if there is a procedural failure. Since the claimants accept that they had the documents in question and were able to deal with them at the examination the question whether they have suffered substantial or indeed any prejudice has obviously to be considered.
"(14) Where an assessment is required by this Directive, an environmental report should be prepared containing relevant information as set out in this Directive, identifying, describing and evaluating the likely significant environmental effects of implementing the plan or programme, and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme; Member States should communicate to the Commission any measures they take concerning the quality of environmental reports.
(15) in order to contribute to more transparent decision making and with the aim of ensuring that the information supplied for the assessment is comprehensive and reliable, it is necessary to provide that authorities with relevant environmental responsibilities and the public are to be consulted during the assessment of plans and programmes, and that appropriate time frames are set, allowing sufficient time for consultations, including the expression of opinion."
"The objective of the Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to permitting sustainable development, by ensuring that, in accordance with the Directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment."
Article 2(b) defines an environmental assessment to mean the preparation of an environmental report, the carrying out of consultations, the taking into account of the environmental report and the results of the consultations in decision-making and the provision of information on the decision in accordance with Articles 4 to 9. Since the urban extension in question is likely to have significant environmental effect and comes within Annex II to Directive 85/337/EEC as amended which applies to the assessment of all public and private projects which are likely to have significant effect on the environment, there is no doubt, and the contrary is not argued, that the requirements set out in the 2004 Directive had to be fulfilled. Article 5 is of central importance since it sets out what an environmental report must contain. It provides:-
"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. Relevant information available on environmental effects of the plans and programmes and obtained at other levels of decision-making or through other Community legislation may be used for providing the information referred to in Annex 1.
4. The authorities referred to in Article 6(3) shall be consulted when deciding on the scope and level of detail of the information which must be included in the environmental report."
The information required by Annex 1 includes the likely significant effects on the environment, the measures envisaged to prevent, reduce and as fully as possible offset any significant adverse effects on the environment of implementing the plan or programme and, most importantly, by (h):-
"an outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties (such as technical deficiencies or lack of know-how) encountered in compiling the required information."
"The likely significant effects on the environment, including short, medium and long-term effects, permanent and temporary effects, positive and negative effects, and secondary, cumulative and synergistic effects, on issues such as-
(c) human health;
(i) climatic factors;
(j) material assets;
(k) cultural heritage, including architectural and archaeological heritage;
(l) landscape; and
(m) the inter-relationship between the issues referred to in sub-paragraphs (a) to (l)."
"4.6 If certain aspects of a plan or programme have been assessed at one stage of the planning process and the assessment of a plan or programme at a later stage of the process uses the findings of the earlier assessment, those findings must be up to date and accurate for them to be used in the new assessment. They will also have to be placed in the context of the assessment. If these conditions cannot be met, the later plan or programme may require a fresh or updated assessment, even though it is dealing with matter which was also the subject of the earlier plan or programme.
4.7 It is clear that the decision to reuse material from one assessment in carrying out another will depend on the structure of the planning, the contents of the plan or programme, and the appropriateness of the information in the environment report, and that decisions will have to be taken case by case. They will have to ensure that comprehensive assessments of each element of the planning process are not impaired, and that a previous assessment used at a subsequent stage is placed in the context of the current assessment and taken into account in the same way. In order to form an identifiable report, the relevant information must be brought together: it should not be necessary to embark on a paper-chase in order to understand the environmental effects of a proposal. Depending on the case, it might be appropriate to summarise earlier material, refer to it, or repeat it. But there is no need to repeat large amounts of data in a new context in which it is not appropriate."
As the second half of 4.7 makes clear, the final report may rely on earlier material but must bring it together so that it is identifiable in that report. This is consistent with the requirement that members of the public must be able to involve themselves in the decision-making process and for that purpose receive all relevant information. It cannot be assumed that all those potentially affected would have read all or indeed any previous reports (in the context of this claim previous environmental assessments).
When we submit a development plan document for independent examination to the Secretary of State we will publish a notice and invite representations to be made within a specified period of six weeks. We will also send two copies of the development plan document and the following documents to the Planning Inspectorate:
- The final report of the sustainability appraisal
- Any supporting technical documents such as the urban capacity study and housing needs surveys
- A copy of the Statement of Community Involvement
- A statement of compliance, which should also indicate how we have addressed the main issues raised in representations received."
The sustainability appraisal included the environmental assessment.
"The requirement to carry out a Sustainability Appraisal and a Strategic Environmental Assessment are distinct. However, Government guidance states that it is possible to satisfy both through a single appraisal process. This is the approach the District Council intends to take with the Forest Heath LDF. This document is both a sustainability appraisal and a strategic environmental assessment, but hereafter it will be referred to simply as a 'sustainability appraisal' on the basis that this is the more comprehensive and inclusive term."
In 1.4 it is described as the first stage of the sustainability assessment (SA) of the emerging Local Development Framework. This includes the Core Strategy. In Paragraph 19, the national and international importance of Newmarket is recognised. In Paragraph 36, under the heading 'unique heritage of Newmarket' it is noted that Newmarket is the only place in the world which still has horseracing stables operating in and around the town centre. Thus, one of the purposes of the LDF will be to safeguard 'the unique character of Newmarket and historic racecourse racing grounds'.
1. Should the majority of new developments be directed to Newmarket because it is the most sustainable settlement in the District?
2. Should there be a more even spread of development between the three market towns of Brandon, Mildenhall and Newmarket?
3. Should development be spread between the three market towns and some or all of the sustainable villages?
4. Should development be spread between the three market towns and some or all of the sustainable villages plus other villages?
5. Should the vast majority of development be concentrated on a single new settlement … with very limited development in any of the towns or sustainable villages?
There was also raised as an issue whether residential development on greenfield sites should be preferred if the national and regional target of 60% brownfield development was not being met in the District.
"The District's housing requirement is decided by the RSS. The District Council supported the draft requirement at the examination in public (EIP) but indicated that this was considered to be the upper limit of what could be delivered sustainably. At the issues and options consultation broadly supported this approach. Issues such as the windfall and non-implementation allowances are based on past evidence.
The broad locational aspects of policy 22 are based on policy 2 and the alternatives considered at the issues and options stage are outlined in the policy 2 section. The approach taken in policy 22 needs to be in general conformity with higher level plans, particularly RSS14, and to take account of the local evidence base, particularly the urban capacity study. The following key factors have been influential in rejecting alternative approaches.
- Of all the settlements Newmarket has the best range of services/facilities and employment opportunities. However, there are limited opportunities for further development without a Greenfield urban extension to the development boundary.
- The urban capacity study (UCS) demonstrates that Red lodge could accommodate a significant proportion of dwellings within the existing development boundary. This is based on implementing previous allocations in the existing Local Plan which had planned on Red Lodge being regenerated to become a key service centre.
- Table 2 shows that the key service centres are providing a higher proportion of dwellings from unimplemented planning permissions than the towns. If overall (between 2001-2021) the majority of dwellings are to be accommodated in the towns, than there needs to be a high proportion of allocations in the towns to redress the balance."
"Greenfield land will be allocated as an urban extension to the north east of Newmarket to approximately 1200 dwellings as part of a mixed use development subject to any necessary highway improvements along Fordham Road to the High Street and improvements to the A14/A142 junction to be phased between 2010 and 2031."
As can be seen, this differed from what had been in CS2 in the 2008 "final" options in an increase from 1,000 to 1,200, an extension of the period from 2020 to 2031 and required improvements to Fordham Road. Policy CS7, which dealt with overall housing provision, indicated a minimum provision in the district of 6,400 dwellings and a further 3,700 between 2021 and 2031. For Newmarket on the Greenfield sites (i.e. that in question in this case) there were proposed 500 between 2010 and 2015, 500 between 2015 and 2020 and 200 in each of the periods 2020 to 2025 and 2025 to 2031.
"Stage B: Developing and refining options and assessing effects
The draft Core Strategy was developed in 2005 and a Sustainability Appraisal (SA) undertaken of five alternative approaches. In September 2005 the draft Core Strategy and SA were published for consultation. The results of these consultations have assisted the development of a set of preferred options.
During 2006 the Preferred Options for the Core Strategy and the Site Specific issues and Options were prepared. The Preferred Options have been subject to an SA/SEA and both documents were consulted on in October 2006.
In 2008 the Core Strategy Final Policy Option document was published. The Final Policy Option was subject to an SA/SEA which was consulted on in August/September 2008."
The documents referred to were on the Council's website and could, it is said, have been brought up by any interested consultee. It is to be noted that under Stage E, the Council said that it would consult on the documents 'and deal with appraising significant changes'.
"Preparation of an environmental report in which likely effects on the environment of implementing the plan or programme, and reasonable alternatives taking into account the objectives and geographical scope of the plan or programme, are identified, described and evaluated."
In the column headed 'Compliance' against this are the words 'This report'. Thus any consultee would expect the report to contain all that was cited above. But nowhere does it identify or evaluate reasonable alternatives or explain why they are rejected in favour of what is proposed.
The response continued:-
"For it to be identified as a strategic site it would need to have been tested against all other reasonable alternatives. The Council would also need to include the specific infra-structure requirements of any strategic sites which are allocated which again has not been done in absolute detail. Any change to promote land north east of Newmarket as a strategic site would lead to the holding up of the Core Strategy, as the further testing of alternatives and the preparation of a specific infrastructure requirement were undertaken. This would conflict with the requirements of PPS 12 that progress on the core strategy should not be held up by the inclusion of non strategic sites. The approach adopted has been agreed with the Government Office."
"Due to the nature of Newmarket which is constrained/protected almost entirely by the horse racing policies, the only suitable site which could reasonably come forward is Hatchfield Farm.
With this in mind, the Council would like to pursue a Strategic Site rather than a broad location which will eventually form a site within the Site Specific Allocations anyway. However, I am conscious that I have not consulted on 'Strategic Sites' throughout the issues and options stage. Would the Council be able to pursue such a proposal coming forward in the proposed submission consultation following the Final Policy Option consultation and the representations received?
If I cannot pursue this option, do I use PPS 12 Paragraphs 4.6 and 4.7 which further state that a Core Strategy can allocate Strategic Sites as long as it does not delay the Core Strategy process?"