QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| (1) DEBORAH JANE ASTON
(2) WESTCOTT MEADOW ACTION GROUP LTD
|- and -
|(1) THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
|- and -
|(2) MOLE VALLEY DISTRICT COUNCIL
|- and -
|(3) TAYLOR WIMPEY UK LTD
Mr Daniel Kolinsky (instructed by Treasury Solicitor) for the First Defendant
The Second Defendant did not appear and was not represented
Mr James Strachan QC (instructed by Berwin Leighton Paisner) for the Third Defendant
Hearing date: 25 & 26 April 2013
Crown Copyright ©
Mr Justice Wyn Williams:
The appeal site, its planning history and planning policy
Where Development will be Directed (A Spatial Strategy)
In order to contribute towards the delivery of sustainable development and in accordance with the Vision:
1. New development will be directed towards previously developed land within the built up area of Leatherhead, Dorking (including North Holmwood), Ashtead, Bookham and Fetcham……
2. Limited development (including re-development) and in-filling will take place on previously developed land within the identified larger rural villages and in-filling only on previously developed land within the small rural villages of the District."
...Westcott is one of the larger rural villages within this policy.)
Housing Provision and Location.
The Council will make provision for at least 3760 net dwellings within the period 2006 and 2026 in accordance with the South East Plan Policy H1.
In meeting this requirement:
1. Priority will be given to locating new residential development within the defined built up areas of Leatherhead, Dorking (including North Holmwood), Ashtead, Bookham and Fetcham.
2. In-filling and limited residential development (including re-development) will be permitted within Beare Green, Brockham, Capel, Charwood, Hookwood and Westcott."
The phrase "limited residential development" is defined within policy CS2 to mean "more than in-filling, that is, more than just frontage development". The text accompanying that definition explains that the limited residential development will take place within the boundaries of the settlement as identified in the Mole Valley Local Plan 2000 and goes on to say that these boundaries will be reviewed as part of the "Land Allocations Development Plan Document". The reference to the Land Allocations DPD must be read in the context of the explanatory text which appears immediately after policy CS2. That text reads:-
"The Council's indicative Housing Trajectory shows that the district housing requirement can be met without the need to use Green Belt/greenfield land until around 2016-2017. Before then the Council will prepare a land allocations development plan document. This will allocate housing sites in the built up area and incorporate a review of the Green Belt boundary to ensure sufficient land is allocated to meet the District's housing requirements and that a release mechanism is established to manage its delivery."
"If there should be a shortfall of housing land in the period before 2011, the Council will bring forward the development of the reserve housing sites in accordance with the provisions of policy HSG6 of the Mole Valley Local Plan (2000).
Policy HSG6 is headed "Reserve Housing Land" and provides:-
"The District Council will continue to monitor housing land supply on an annual basis. If as a result of this process the Council is satisfied that land is required in addition to that allocated in policy HSG5 to meet the identified housing requirements of the Surrey Structure Plan 1994 for the period between 1 April 2001 – 31 March 2006, one or more of the following sites, as shown on the Proposals Map will be released:
1. Between Randall Road and Cleeve Road Leatherhead (2.9 ha/7.28 acres)
2. Fronting Clare Crescent, Leatherhead (0.9ha/2.2 acres)
3. Between Glenfield Close and Ridge Close, Strood Green, Brockham (3.2 ha/8.0 acres)
4. Marley Mead, Ridgeway Road, Dorking (1.3 ha/3.2 acres)
5. Rear of Springfield Road, Westcott (2.2ha/5.4 acres)"
The remaining wording of the policy makes it clear that site 5 (which is the appeal site) should be released for development only if the deficit in the shortfall in housing numbers was more than 150.
Events at the public inquiry
"Don't regard flooding as a determining matter – this appeal, neither do main parties or [environment agency]. Very conscious of timing. There is a lot of business we must get through. I decided we would not allow any further evidence on a peripheral issue.
Have Dr Aston's case, and Appellant's response to it. Have sufficient information on it. So for expediting inquiry timing then we are proceeding as we are."
"4. In making my decision on this matter, I started from the position that interested persons can only put questions to opposing witnesses at the Inspector's discretion. Applying that discretion, I decided that:-
a) (based on all the submitted evidence) flood risk was not likely to be a determining issue in the appeal;
b) I already knew Dr Aston's case, both verbal and written, and also had ample written evidence on flood risk from the Appellants;
c) It simply was not expedient to spend further inquiry time on the matter.
5. I emphasised that this inquiry, originally scheduled for 3 days, had overrun to require a further 2 days (a Thursday and Friday after a long adjournment), and I had repeatedly reminded all parties that it must be concluded within the 5 days. In the event, we finished at 6pm on the last day, Friday.
6. Given that timing, and had I allowed Ms Aston to put questions and receive answers on flood risk (together of a duration I was not in a position to predict), I believed – and I definitely thought at the time – that there was every likelihood that it would have been necessary to adjourn the inquiry again, to a date which may not have been agreed and fixed at the time of the adjournment but which may have had to be discussed and negotiated subsequently, via the Planning Inspectorate's Charting Managers, working with the 3 Counsel and others. I believe that this would have been regarded as an unwarranted delay and a waste of time and expense by virtually all the participants in the inquiry."
This explanation is very similar, albeit longer, to that which was noted by the parties when the Inspector gave his oral reasons for refusing cross-examination.
"Having considered the revised proposed development of the aforementioned site it is deemed that this would not fall within the parameters set out in Schedule 1 to the Regulations and does not therefore automatically require an Environmental Impact Assessment (EIA). The proposal has then subsequently been considered under Schedule 2 to the Regulations, which set out indicative criteria and thresholds for determining if development will require an EIA.
Residential development is not specifically identified in Schedule 2, however, it could be considered to fall within the criteria of infrastructure developments and sub-category urban development projects. This sub-category sets out thresholds for the requirement of an EIA, including the following: the development would have significant urbanising effects in a previously non-urbanised area (e.g. a new development of more than 1000 dwellings). Whilst these thresholds are not exhaustive the revised proposal for the above site would be for a residential scheme numbering 14 No dwellings, very significantly below the level specified. In addition, the revised proposal would result in considerably less development than the scheme previously considered for this site, for which an EIA was not required following a formal screening opinion.
The site is located within the Surrey Hills Area Of Outstanding Natural Beauty, which is considered a 'sensitive area' as defined within Regulation 2(1). However, the situation of the site within a sensitive area does not automatically require an EIA, the key question being whether or not the project would be likely to give rise to significant effects on the environment of the location concerned.
The site to the rear of Springfield Road, Westcott has been identified as a reserve housing site since the Dorking Area Local Plan of 1980, having since been re-evaluated by Planning Inspectors, with a principle of housing development on this site being considered acceptable in this location within the ANOB. An EIA cannot question the principle of the proposed development, but only seek to ensure that it is sensitive to its location, which has already been previously considered through the development plan adoption processes. In line with the screening opinion issued in respect of the previous scheme for up to 40 No. dwellings on this site, it is the opinion of this Council, as local planning authority, that the submission of an EIA would not bring anything further to the consideration of a planning application."
"Development proposed for sites which have not previously been intensively developed are more likely to require EIA if:
- The site area of the scheme is more than 5 hectares; or
- It would provide a total of more than 10,000 square metres of new commercial floor space; or
- The development would have significant urbanising effects in a previously non-urbanised area (e.g. a new development of more than 1,000 dwellings)."
The screening opinion quoted that part of the guidance relating to the provision of dwellings. I appreciate that the screening opinion appears to confuse the guidance in that Circular with the selection criteria in Schedule 3. However, I am satisfied that the Second Defendant was relying upon the substance of the advice in the Circular and that it was entitled so to do in reaching its conclusion.
"During the first part of the Inquiry, Counsel [for the Second Claimant] queried whether the Council had properly published a screening opinion, in accordance with Regulation 5(1) of the [1999 Regulations] as to whether the proposals amounted to EIA development. The Council's opinion had been that the proposals would not fulfil the relevant criteria in the Regulations, and would not therefore require EIA. Having heard representations from all three parties on this matter, I agree with that; the effects of the proposed development are not of such significance as to warrant EIA. Accordingly, I have not considered it necessary to make or seek a screening direction under the Regulations."
"22. I confess finding this whole discussion somewhat sterile. The issue at this stage is not the validity of the screening opinion as such, but whether a flawed screening opinion led to failure to conduct an EIA, and accordingly undermined the legality of the planning process. The screening letter could and should have been more fully reasoned, ….."
In Walton the Supreme Court was careful to say that the court retains a discretion to withhold a quashing order even in circumstances where there has been breach of a European Directive and/or a breach of Regulations which transpose a Directive into English and Welsh or Scottish law – see, in particular, Lord Carnwath at paragraph 138 and Lord Hope at paragraph 155.
"113. Since Mr Moyes did not produce a further screening opinion, that is to say a written statement that the development was, or was not, EIA development, and since the Council took no other steps in relation to the 1999 Regulations, there was a failure to comply with the letter of the 1999 Regulations; the Council was thereby in breach of its obligations. This failure, I note, had nothing to do with an absence of reasons: rather it was a failure to provide a written statement as required by the 1999 Regulations at all.
114. What, then, is the impact of this failure to comply with the 1999 Regulations? In addressing that question, it is to be noted that there is nothing in the 1999 Regulations which expressly states that a planning authority is not to grant planning permission in relation to Schedule 2 development which is not EIA development without having first adopted a screening opinion: contrast the position in relation to Schedule 2 development which is EIA development, in which case Regulation 3(2) provides that a planning authority must not grant planning permission unless it has taken environmental information (as defined) into consideration.
115. Of course, a planning authority cannot know whether or not a particular Schedule 2 development is likely to have significant effects on the environment (and thus constitute EIA development) without carrying out an investigation. That is the purpose of the screening exercise and the adoption of a screening opinion, each of which is thus an important part of the planning process.
116. It can, therefore, be suggested that a failure to comply with the screening requirements amounts to a fatal flaw in the process leading to the grant of planning permission so that the permission granted is thus vitiated and should be quashed. That may be correct as a general rule. But, so it seems to me, it must be possible to allow for cases, call them exceptional cases if you will, where a failure to comply strictly with the requirements of the 1999 Regulations in relation to screening should not result in the invalidity of the grant of planning permission for the development in question. Whether such a grant is vitiated will all depend on the facts of the particular case.
117. In the present case, the important factors are these. First, there was a full screening opinion in relation to the original application 1372 about which no complaint has been, or could be, made. Secondly, Mr Moyes, taking into account all of the features of the revised proposals, saw no need for further screening, concluding that the development, (whether assessed by reference to its individual elements or by reference to the overall development) would not have significant effects on the environment. That development was not, on the basis of Mr Moyes' views, EIA development. There was, on these facts, an effective screening of the revised proposals and the relevant person (Mr Moyes) charged with discharging responsibilities of the Council had validly formed the opinion that that development would not have significant effects on the environment. The only conclusion which he could have reached was that the development was not EIA development. His failure was not to reduce that opinion into writing.
118. In my judgment existence of the original screening opinion coupled with the way in which Mr Moyes subsequently addressed the revised proposals and that changes (if any) on the environmental aspects of the revisions and the conclusions which he reached bring the case within the exceptional category which I have described. The failure to produce a written statement expressing those conclusions should not, I consider, vitiate the planning permission actually granted….."
"Where an Inspector is dealing with an appeal and a question arises as to whether the relevant application is an EIA application and it appears to the Inspector that it may be such an application the Inspector shall refer that question to the Secretary of State and shall not determine the appeal, except by refusing planning permission…., before he receives a screening direction."
"(ii) The Inspector failed to deal with WMAG's evidence and arguments on prematurity, interpretation of the Core Strategy (including compliance with policy CS1 and so the development plans), and sustainability, instead mis-stating WMAG's case by dealing with the point WMAG had expressly dropped on housing numbers. In doing so he failed to have regard to material considerations, had regard to mistaken, and so flawed, immaterial considerations and failed to give adequate or intelligible reasons."
As is obvious, a number of separate but related issues arise for consideration.
"The appeal site has long been a reserved housing site. It was first so designated in the Dorking Area Local Plan, (adopted 1983) and the designation was perpetuated through policy HSG6 in the Mole Valley Local Plan. This is and remains (post-NPPF) a saved development plan policy. Neither plans specifies the housing numbers to be built on the site. The CS refers to reserve housing sites at its paragraph 6.1.7, which states that if there is a housing shortfall, the reserve housing sites will be brought forward in accordance with the saved policy HSG6. The Council's most recent estimate, contained in a report to The Executive dated 6 March 2012, is that it has a deliverable housing land supply of just over 2.5 years. This is substantially less than the 5 year requirement specified in national planning policy"
"The proposals would have many merits in terms of helping to meet the district housing requirements, including the need for affordable housing, and in terms of their layout and design. They would be generally in accordance with the relevant NPPF and development plan policies."
"36. As mentioned above, the Council and the Appellants agree that the district has currently only a 2.5 year land supply, as against the 5 year requirement described in the NPPF (and in its predecessor, PPS3 Housing). In that situation, PPS3 advised that local planning authorities should consider favourably planning applications for housing, having regard to certain other considerations. A similar approach is taken in the NPPF, which lends strong support to the new housing development. WMAG however argues that owing to the likely imminent revocation of the South East Plan which is the ultimate source of the district housing land requirement, that requirement is likely soon to change, and should not therefore be relied upon.
37. I do not agree with WMAG on this point. The simple fact is that even if the SEP is soon to be revoked, its housing land requirement remains embedded in the CS. Revocation would not therefore alter the current identified shortfall in housing land supply, which I judge to be both significant and serious. And in this case nothing contradicts the NPPF's presumption in favour of sustainable forms of housing which is an important part of its general presumption in favour of sustainable development. In this context, I regard the provision of four affordable dwellings as a notable merit of the appeal scheme, which is fully supported by development plan housing policies."
"(1) Except as otherwise provided in the Rules, the inspector shall determine the procedure at an inquiry.
(2) At the start of the inquiry the inspector shall identify what are, in his opinion, the main issues to be considered at the inquiry and any matters on which he requires further explanation from the persons entitled or permitted to appear.
(3) Nothing in paragraph (2) shall preclude any person entitled or permitted to appear from referring to issues which they consider relevant to the consideration of the appeal but which were not issues identified by the inspector pursuant to that paragraph.
(5) A person entitled to appear at an inquiry shall be entitled to call evidence and the Appellant, the local planning authority and any statutory party shall be entitled to cross-examine persons giving evidence, but, subject to the foregoing and paragraphs (6) and (9), the calling of evidence and the cross-examination of persons giving evidence shall otherwise be at the discretion of the inspector.
(6) The Inspector may refuse to permit the –
(a) giving or production of evidence;
(b) cross-examination of persons giving evidence; or
(c) presentation of any other matter which he considers to be irrelevant or repetitious; but where he refuses to permit the giving of oral evidence, the person wishing to give the evidence may submit to him any evidence or any other matter in writing before the close of the inquiry."
Rule 16(9) has no relevance in the circumstances of this case.
"Proceedings at a local inquiry at which many parties wish to make representations without incurring the expense of legal representation and cannot attend the inquiry throughout its length ought to be as informal as is consistent with achieving those objectives. "Over-judicialising" the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their client will not be fair. It would, in my view, be quite fallacious to suppose that at any inquiry of this kind the only fair way of ascertaining matters of fact and expert opinion is by oral testimony of witnesses who are subject to cross-examination on behalf of parties who disagree with what they have said. Such procedure is peculiar to litigation conducted in courts that follow the common law system of procedure; it plays no part in the procedure of courts of justice under legal systems based upon civil law, including the majority of our fellow Member States of the European Community; even in our own Admiralty Court it is not availed of for the purpose of ascertaining expert opinion on questions of navigation – the judge acquires information about this by private inquiry from assessors who are not subject to cross-examination by the parties. So refusal by an Inspector to allow a party to cross-examine orally at a local inquiry a person who has made statements of fact or has expressed expert opinions is not unfair per se.
Whether fairness requires an Inspector to permit a person who has made statements on matters of fact or opinion, whether expert or otherwise, to be cross-examined by a party to the inquiry who wishes to dispute a particular statement must depend on all the circumstances. In the instant case, the question arises in connection with expert opinion upon a technical matter. Here the relevant circumstances in considering whether fairness requires that cross-examination should be allowed include the nature of the topic upon which the opinion is expressed, the qualifications of the maker of the statement to deal with that topic, the forensic competence of the proposed examiner, and, most important, the Inspector's own views as to whether the likelihood of the cross-examination will enable him to make a report which will be more useful to the Minister in reaching his decision than it would otherwise be is sufficient to justify any expense and inconvenience to other parties to the inquiry which would be caused by any resulting prolongation of it."
"It used to be commonly thought that the purpose of a local inquiry was to enable local residents and organisations to "blow off steam", but that no longer is the case, for persons and bodies opposed to a project now expect to take an active, intelligent and informed part in the decision-making process. If that expectation is denied, a sense of grievance results and public opinion is affronted. In my judgment it should be a primary of an Inspector holding an inquiry to ensure that nobody leaves the inquiry with a reasonable cause of dissatisfaction, although I recognise that there are some people who can never be satisfied. All those matters, of which I take judicial notice, lead me to the conclusion that a reasonable person viewing the matter objectively would consider that there was risk that injustice or unfairness would result if a person considering himself to be directly injuriously affected by a proposal was denied cross-examination of a witness who had given evidence contrary to his case…..
The Applicant here was denied cross-examination not because he proposed to put irrelevant or repetitive questions, but because the Inspector feared that he might do so, and because the Inspector apparently considered that the Applicant's own evidence would be a substitute for cross-examination. I accept that cross-examination must not be used for the purpose of a "fishing expedition", that is to say, the objector's purpose must not be to use the witness as one of his own witnesses for giving what amounts to evidence in chief. However, in this case the senior officers of the planning departments of the first two named authorities gave evidence to support the application and the Inspector clearly attached great importance to that evidence….
No planning evidence was led by the Coal Board, so in effect the planning evidence for them was given by the planning officers, some of whom the Applicant wished to cross-examine. …therefore the evidence given by those officers was not only contrary to the Applicant's case but went to the very root of it and to the Inspector's recommendation (accepted by the Secretary of State) that the environmental damage which would arise from the workings was not sufficient to outweigh the need for the coal. It follows that the Applicant was denied the right to challenge by cross-examination the very evidence upon which his own case turned."
"115. Great weight should be given to conserving landscape and scenic beauty in national parks, the Broads and areas of outstanding natural beauty, which have the highest status of protection in relation to landscape and scenic beauty. The conservation of wildlife and cultural heritage are important considerations in all these areas, and should be given great weight in national parks and the Broads.
116. Planning permission should be refused for major developments in these designated areas except in exceptional circumstances where it can be demonstrated they are in the public interest….consideration of such applications should include an assessment of:
- The need for the development, including in terms of any national consideration, the impact of permitting it, or refusing it, upon the local economy;
- The cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way;
- Any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated."
The NPPF does not define or seek to illustrate the meaning of the phrase "major developments". Mr Harwood QC points out that in the Town and Country Planning (Development Management Procedure) Order 2010 Article 2 defines major development as development involving any one or more of the following:-
"(a) the winning and working of minerals or the use of land for mineral-working deposits;
(b) waste development;
(c) the provision of dwelling-houses where –
(i) the number of dwelling-houses to be provided is 10 or more; or
(ii) the development is to be carried out on a site having an area of 0.5 hectares or more and it is not known whether the development falls within sub-paragraph (c)(i);
(d) the provision of a building or buildings where the floor space to be created by the development is 1,000 square metres or more; or
(e) development carried out on a site having an area of 1 hectare or more."