QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
- and -
BROADLAND DISTRICT COUNCIL
SOUTH NORFOLK DISTRICT COUNCIL
NORWICH CITY COUNCIL
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr W Upton (instructed by Sharpe Pritchard Solicitors) for the Defendants
Hearing dates: 6th and 7th December 2011
Crown Copyright ©
MR JUSTICE OUSELEY:
The legislative framework
"In requiring the likely significant environmental effects of reasonable alternatives to be identified, described and evaluated, the Directive makes no distinction between the assessment requirements for the drafted plan or programme and for the alternatives. The essential thing is that the likely significant effects of the plan or programme and the alternatives are identified, described and evaluated in a comparable way. The requirements in Article 5(2) concerning scope and level of detail for the information in the report apply to the assessment of alternatives as well. It is essential that the authority or parliament responsible for the adoption of the plan or programme as well as the authorities and the public consulted, are presented with an accurate picture of what reasonable alternatives there are and why they are not considered to be the best option. The information referred to in Annex I should thus be provided for the alternatives chosen."
"40. In my judgment, Mr Elvin is correct to submit that the final report accompanying the proposed Core Strategy to be put to the inspector was flawed. It was not possible for the consultees to know from it what were the reasons for rejecting any alternatives to the urban development where it was proposed or to know why the increase in the residential development made no difference. The previous reports did not properly give the necessary explanations and reasons and in any event were not sufficiently summarised nor were the relevant passages identified in the final report. There was thus a failure to comply with the requirements for the Directive and so relief must be given to the claimants."
"As well as identifying smaller urban extensions and growth in villages, the main pattern of large-scale growth could be:
a) concentration on the north east and south west of Norwich and at Wymondham
b) as a) plus a fourth location for large scale growth
c) as a) plus two or more locations for medium scale growth
d) a different combination for major growth options
e) a more dispersed pattern of growth (perhaps an average of 1,500 dwellings in ten locations)."
"3.3.2 The Pre-Submission JCS sets out the GNDPs current preferred approach in a series of draft policies. These policies represent the GNDPs preferred options, which have been selected and refined following consultation on alternative options that has occurred in the past. In particular, options were published and consulted during the 'Issue and Options' consultation in 2007. All options presented in the Issues and Options consultation document were also subjected to SA to establish the relative merits of options in sustainability terms and inform the identification of preferred options. The findings of the Issues and Options SA were summaries in a brochure, which is available to download from the GNDP website.
3.3.3 Following the Issues and Options consultation the GNDP were able to identify many of their preferred options. However, it transpired that there was a need to consult further on options for the spatial approach to growth. Identification of a spatial approach to growth is the single most important decision to be made by the JCS, and the decision with the most wide ranging and potentially significant sustainability implications. The section below gives further details as to how the preferred approach was developed."
- One key area of concern relates to whether the NDR, which is promoted through this Policy, would preclude sustainable patterns of travel and transport associated with the North East Growth Triangle. It will be of great importance to ensure that the NDR does not have this effect. It will be important to design in ambitious measures that encourage residents to meet more of their needs locally by sustainable modes of travel, and that also allow ease of access to Norwich by rapid public transport. When considering the necessity for the NDR it should be possible to assume minimal use of this road by residents of the Growth Area."
"It has been argued that a non-NDR package of NATS interventions has not been modelled and that this could conceivably produce a better overall solution. However, we are not convinced that such an option would be realistic and place weight on the DfT's favourable 'in principle' assessments and the judgements which led to the NDR's acceptance into 'Programme Entry' and the 'Development Pool', as discussed above."
"The AAP is the proper mechanism for carrying out the site-specific investigations, considering the alternatives and undertaking the public consultations necessary to establish the point at which non-delivery of the NDR may, or may not, become a 'showstopper' for further development in the growth triangle. The JCS should not go beyond its strategic role and fetter the necessary thorough investigation through the AAP by making premature commitments based on untested scenarios."
"Moreover, there are strong reasons to support the selection of this area as a location for a major urban extension. Fundamentally, if development is to take place at the overall scale proposed by the GNDP constituent authorities (which we have found sound), the pattern of small towns and villages in Broadlands offers no realistic alternative 'dispersal' options capable of accommodating such numbers in ways likely to be sustainable and capable of respecting the characters of the host settlements. There is no evidence that Norwich could accommodate more than already reflected in the JCS account of existing commitments, and it appears (from our consideration of the South Norfolk options) that redistribution from the north of the NPA to south is not a viable option. Concentrating the proposed development at this major growth location is the most effective way of maximising its contribution to the NPA's sustainability and providing infrastructure economically."
"With regard to the North East Norwich growth triangle, we have already concurred with GNDP's judgement that from a relatively early stage in the evolution of the JCS there has been no reasonable sustainable alternative to a substantial urban extension in that location if this scale of growth is to be accommodated."
"We therefore conclude that South Norfolk's view that the JCS distribution represents the best overall 'political fit' is not inconsistent with judgements that it (a) represents the most appropriate plan when considered against the reasonable alternatives and (b) broadly fulfils GNDP's duty under S39 of the 2004 Act to exercise its DPD-making functions with the objective of contributing to the achievement of sustainable development."
"Our broad conclusion is that the major principles of NATS, as reflected in the JCS, represents a sound and sustainable transport strategy for the NPA. The implementation of these measures would enable the JCS to proceed with a pattern of growth which is justified, effective and consistent with national policy. This conclusion is subject to a number of necessary changes that have been discussed above. Together, these give the JCS greater resilience and effectiveness in the case of delay to, or non delivery of, the NDR by indicating a mechanism for transparently establishing the maximum extent to which development at the growth triangle could proceed before triggering the need for review of the JCS in that respect."
"5.1 The iterative plan making process set out above, informed by SA and consultation throughout, involved consideration of a number of reasonable alternatives.
5.2 This is particularly the case in relation to the spatial location of growth. At the Issues and Options stage ten potential growth options were put forward (plus brownfield sites in the city & suburbs). The Sustainability Appraisal was used to select options to take forward along with other evidence such as the water cycle study, public transport modelling and discussions with children's services.
5.3 The former preferred options document considered alternatives for growth options and area-wide policies. The alternatives were assessed and captured in the SA document and remain in it as evidence of considering reasonable alternatives.
5.4 The strategy submitted to the Secretary of State has a relatively concentrated pattern of growth in Broadland, based on sustainable urban extensions and a more dispersed pattern in south Norfolk, with growth focussed on a number of existing settlements. Earlier plan drafts, supported by the SA, included options that had promoted a somewhat less dispersed pattern of growth in south Norfolk, with more limited development at Long Stratton.
5.5 Having regard to the technical evidence and public comment, the strategic preference of the GNDP was to promote growth in Long Stratton to achieve the consequent environmental improvements to the village.
5.6 The strategy has been adopted subsequent to a formal Examination in Public. The independent Inspectors concluded that the plan is sound, subject to a number of required changes. These changes have been incorporated into the adopted strategy."
Ground 1: SEA and alternatives
Conclusions on Ground 1
Ground 2: the absence of an assessment of the NDR in the JCS SA
Conclusions on ground 2
Conclusions on discretion