QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Zurich Assurance Limited
|- and -
|Winchester City Council
South Downs National Park Authority
Michael Bedford & Emma Dring (instructed by Winchester City Council) for the Defendants
Hearing dates: 11/2/14-12/2/14
Crown Copyright ©
Mr Justice Sales:
i) Ground One: The Inspector made a methodological error in his assessment of the proposed housing requirement, by failing to have regard to an existing shortfall against the housing requirements in the South East Plan. He therefore failed to assess the Core Strategy correctly as required under section 20(5) of the 2004 Act and with proper regard to the National Planning Policy Framework promulgated in March 2012 ("the NPPF"). The Inspector also failed to give adequate reasons for his decision. WCC erred in law by adopting the Core Strategy, following the Inspector's error;
ii) Ground Two: The Inspector erred in concluding that WCC had complied with the duty of co-operation in section 33A of the 2004 Act. The Inspector also failed to give adequate reasons for his decision. WCC therefore erred in law by adopting the Core Strategy, which had been approved by the Inspector on an unlawful basis; and
iii) Ground Three: Both WCC and the Inspector erred in concluding that the Sustainability Appraisal which accompanied the submission version of the Core Strategy complied with the requirements of the Strategic Environmental Assessment Directive 2001/42/EC ("the SEA Directive") and the Environmental Assessment of Plans and Programmes Regulations 2004 ("the Environmental Assessment Regulations") which implement it. The Inspector should have required further environmental assessment to be carried out before the Core Strategy could be adopted.
Legal and Planning Framework
(i) The 2004 Act
"(5) The purpose of an independent examination is to determine in respect of the development plan document–
(a) whether it satisfies the requirements of sections 19 and 24(1), regulations under section 17(7) and any regulations under section 36 relating to the preparation of development plan documents;
(b) whether it is sound; and
(c) whether the local planning authority complied with any duty imposed on the authority by section 33A in relation to its preparation."
"Planning strategically across local boundaries
178. Public bodies have a duty to cooperate on planning issues that cross administrative boundaries, particularly those which relate to the strategic priorities set out in paragraph 156. The Government expects joint working on areas of common interest to be diligently undertaken for the mutual benefit of neighbouring authorities.
179. Local planning authorities should work collaboratively with other bodies to ensure that strategic priorities across local boundaries are properly co-ordinated and clearly reflected in individual Local Plans. Joint working should enable local planning authorities to work together to meet development requirements which cannot wholly be met within their own areas – for instance, because of a lack of physical capacity or because to do so would cause significant harm to the principles and policies of this Framework. As part of this process, they should consider producing joint planning policies on strategic matters and informal strategies such as joint infrastructure and investment plans.
180. Local planning authorities should take account of different geographic areas, including travel-to-work areas. In two tier areas, county and district authorities should cooperate with each other on relevant issues. Local planning authorities should work collaboratively on strategic planning priorities to enable delivery of sustainable development in consultation with Local Enterprise Partnerships and Local Nature Partnerships. Local planning authorities should also work collaboratively with private sector bodies, utility and infrastructure providers.
181. Local planning authorities will be expected to demonstrate evidence of having effectively cooperated to plan for issues with cross-boundary impacts when their Local Plans are submitted for examination. This could be by way of plans or policies prepared as part of a joint committee, a memorandum of understanding or a jointly prepared strategy which is presented as evidence of an agreed position. Cooperation should be a continuous process of engagement from initial thinking through to implementation, resulting in a final position where plans are in place to provide the land and infrastructure necessary to support current and projected future levels of development."
"Using a proportionate evidence base
158. Each local planning authority should ensure that the Local Plan is based on adequate, up-to-date and relevant evidence about the economic, social and environmental characteristics and prospects of the area. Local planning authorities should ensure that their assessment of and strategies for housing, employment and other uses are integrated, and that they take full account of relevant market and economic signals
"47. To boost significantly the supply of housing, local planning authorities should:
- use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period;
- identify and update annually a supply of specific deliverable11 sites sufficient to provide five years worth of housing against their housing requirements with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land. Where there has been a record of persistent under delivery of housing, local planning authorities should increase the buffer to 20% moved forward from later in the plan period) to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market for land;
- identify a supply of specific, developable12 sites or broad locations for growth, for years 6-10 and, where possible, for years 11-15;
- for market and affordable housing, illustrate the expected rate of housing delivery through a housing trajectory for the plan period and set out a housing implementation strategy for the full range of housing describing how they will maintain delivery of a five-year supply of housing land to meet their housing target; and
- set out their own approach to housing density to reflect local circumstances."
"11. To be considered deliverable, sites should be available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years and in particular that development of the site is viable. Sites with planning permission should be considered deliverable until permission expires, unless there is clear evidence that schemes will not be implemented within five years, for example they will not be viable, there is no longer a demand for the type of units or sites have long term phasing plans.
12. To be considered developable, sites should be in a suitable location for housing development and there should be a reasonable prospect that the site is available and could be viably developed at the point envisaged."
"Examining Local Plans
182. The Local Plan will be examined by an independent inspector whose role is to assess whether the plan has been prepared in accordance with the Duty to Cooperate, legal and procedural requirements, and whether it is sound. A local planning authority should submit a plan for examination which it considers is "sound" – namely that it is:
- Positively prepared – the plan should be prepared based on a strategy which seeks to meet objectively assessed development and infrastructure requirements, including unmet requirements from neighbouring authorities where it is reasonable to do so and consistent with achieving sustainable development;
- Justified – the plan should be the most appropriate strategy, when considered against the reasonable alternatives, based on proportionate evidence;
- Effective – the plan should be deliverable over its period and based on effective joint working on cross-boundary strategic priorities;
- Consistent with national policy – the plan should enable the delivery of sustainable development in accordance with the policies in the [NPPF]. …"
"33A Duty to co-operate in relation to planning of sustainable development
(1) Each person who is—
(a) a local planning authority
(b) a county council in England that is not a local planning authority, or
(c) a body, or other person, that is prescribed or of a prescribed description,
must co-operate with every other person who is within paragraph (a), (b) or (c) or subsection (9) in maximising the effectiveness with which activities within subsection (3) are undertaken.
(2) In particular, the duty imposed on a person by subsection (1) requires the person—
(a) to engage constructively, actively and on an ongoing basis in any process by means of which activities within subsection (3) are undertaken, and
(b) to have regard to activities of a person within subsection (9) so far as they are relevant to activities within subsection (3).
(3) The activities within this subsection are—
(a) the preparation of development plan documents …
(d) activities that can reasonably be considered to prepare the way for activities within any of paragraphs (a) to (c) that are, or could be, contemplated, and
(e) activities that support activities within any of paragraphs (a) to (c),
so far as relating to a strategic matter.
(4) For the purposes of subsection (3), each of the following is a "strategic matter"—
(a) sustainable development or use of land that has or would have a significant impact on at least two planning areas, including (in particular) sustainable development or use of land for or in connection with infrastructure that is strategic and has or would have a significant impact on at least two planning areas, …
(6) The engagement required of a person by subsection (2)(a) includes, in particular—
(a) considering whether to consult on and prepare, and enter into and publish, agreements on joint approaches to the undertaking of activities within subsection (3) …
(7) A person subject to the duty under subsection (1) must have regard to any guidance given by the Secretary of State about how the duty is to be complied with. …"
"113 Validity of strategies, plans and documents
(1) This section applies to–
(c) a development plan document; …
(2) A relevant document must not be questioned in any legal proceedings except in so far as is provided by the following provisions of this section.
(3) A person aggrieved by a relevant document may make an application to the High Court on the ground that–
(a) the document is not within the appropriate power;
(b) a procedural requirement has not been complied with.
(4) But the application must be made not later than the end of the period of six weeks starting with the relevant date.
(5) The High Court may make an interim order suspending the operation of the relevant document–
(a) wholly or in part;
(b) generally or as it affects the property of the applicant.
(6) Subsection (7) applies if the High 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.
(7) The High Court may—
(a) quash the relevant document;
(b) remit the relevant document to a person or body with a function relating to its preparation, publication, adoption or approval.
(7A) If the High Court remits the relevant document under subsection (7)(b) it may give directions as to the action to be taken in relation to the document.
(7B) Directions under subsection (7A) may in particular—
(a) require the relevant document to be treated (generally or for specified purposes) as not having been approved or adopted;
(b) require specified steps in the process that has resulted in the approval or adoption of the relevant document to be treated (generally or for specified purposes) as having been taken or as not having been taken;
(c) require action to be taken by a person or body with a function relating to the preparation, publication, adoption or approval of the document (whether or not the person or body to which the document is remitted);
(d) require action to be taken by one person or body to depend on what action has been taken by another person or body.
(7C) The High Court's powers under subsections (7) and (7A) are exercisable in relation to the relevant document—
(a) wholly or in part;
(b) generally or as it affects the property of the applicant.
(10) A procedural requirement is a requirement under the appropriate power or contained in regulations or an order made under that power which relates to the adoption, publication or approval of a relevant document.
(11) References to the relevant date must be construed as follows–
(c) for the purposes of a development plan document (or a revision of it), the date when it is adopted by the local planning authority or approved by the Secretary of State (as the case may be); …"
(ii) The SEA Directive and the Environmental Assessment Regulations
(1) Article 174 of the Treaty provides that Community policy on the environment is to contribute to, inter alia, the preservation, protection and improvement of the quality of the environment, the protection of human health and the prudent and rational utilisation of natural resources and that it is to be based on the precautionary principle. Article 6 of the Treaty provides that environmental protection requirements are to be integrated into the definition of Community policies and activities, in particular with a view to promoting sustainable development. …
(4) Environmental assessment is an important tool for integrating environmental considerations into the preparation and adoption of certain plans and programmes which are likely to have significant effects on the environment in the Member States, because it ensures that such effects of implementing plans and programmes are taken into account during their preparation and before their adoption.
(5) The adoption of environmental assessment procedures at the planning and programming level should benefit undertakings by providing a more consistent framework in which to operate by the inclusion of the relevant environmental information into decision making. The inclusion of a wider set of factors in decision making should contribute to more sustainable and effective solutions.
(6) The different environmental assessment systems operating within Member States should contain a set of common procedural requirements necessary to contribute to a high level of protection of the environment. …
(9) This Directive is of a procedural nature, and its requirements should either be integrated into existing procedures in Member States or incorporated in specifically established procedures. With a view to avoiding duplication of the assessment, Member States should take account, where appropriate, of the fact that assessments will be carried out at different levels of a hierarchy of plans and programmes.
(10) All plans and programmes which are prepared for a number of sectors and which set a framework for future development consent of projects listed in Annexes I and II to Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, and all plans and programmes which have been determined to require assessment pursuant to Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild flora and fauna, are likely to have significant effects on the environment, and should as a rule be made subject to systematic environmental assessment. When they determine the use of small areas at local level or are minor modifications to the above plans or programmes, they should be assessed only where Member States determine that they are likely to have significant effects on the environment. …
(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. …
(17) The environmental report and the opinions expressed by the relevant authorities and the public, as well as the results of any transboundary consultation, should be taken into account during the preparation of the plan or programme and before its adoption or submission to the legislative procedure.
(18) Member States should ensure that, when a plan or programme is adopted, the relevant authorities and the public are informed and relevant information is made available to them. …"
The objective of this 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 promoting sustainable development, by ensuring that, in accordance with this Directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment.
For the purposes of this Directive:
(a) 'plans and programmes' shall mean plans and programmes, including those co-financed by the European Community, as well as any modifications to them:
- which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government and
- which are required by legislative, regulatory or administrative provisions;
(b) 'environmental assessment' shall 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;
(c) 'environmental report' shall mean the part of the plan or programme documentation containing the information required in Article 5 and Annex I;
(d) 'The public' shall mean one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisations or groups.
2. Subject to paragraph 3, an environmental assessment shall be carried out for all plans and programmes,
(a) which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use and which set the framework for future development consent of projects listed in Annexes I and II to Directive 85/337/EEC, or
(b) which, in view of the likely effect on sites, have been determined to require an assessment pursuant to Article 6 or 7 of Directive 92/43/EEC. …
5. Member States shall determine whether plans or programmes referred to in paragraphs 3 and 4 are likely to have significant environmental effects either through case-by-case examination or by specifying types of plans and programmes or by combining both approaches. For this purpose Member States shall in all cases take into account relevant criteria set out in Annex II, in order to ensure that plans and programmes with likely significant effects on the environment are covered by this Directive. …
7. Member States shall ensure that their conclusions pursuant to paragraph 5, including the reasons for not requiring an environmental assessment pursuant to Articles 4 to 9, are made available to the public. …
1. The environmental assessment referred to in Article 3 shall be carried out during the preparation of a plan or programme and before its adoption or submission to the legislative procedure. …
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 I. …
1. The draft plan or programme and the environmental report prepared in accordance with Article 5 shall be made available to the authorities referred to in paragraph 3 of this Article and the public.
2. The authorities referred to in paragraph 3 and the public referred to in paragraph 4 shall be given an early and effective opportunity within appropriate time frames to express their opinion on the draft plan or programme and the accompanying environmental report before the adoption of the plan or programme or its submission to the legislative procedure. …
Information on the decision
1. Member States shall ensure that, when a plan or programme is adopted, the authorities referred to in Article 6(3), the public and any Member State consulted under Article 7 are informed and the following items are made available to those so informed:
(a) the plan or programme as adopted;
(b) a statement summarising how environmental considerations have been integrated into the plan or programme and how the environmental report prepared pursuant to Article 5, the opinions expressed pursuant to Article 6 and the results of consultations entered into pursuant to Article 7 have been taken into account in accordance with Article 8 and the reasons for choosing the plan or programme as adopted, in the light of the other reasonable alternatives dealt with, and
(c) the measures decided concerning monitoring in accordance with Article 10.
2. The detailed arrangements concerning the information referred to in paragraph 1 shall be determined by the Member States. …"
"The information to be provided under Article 5(1), subject to Article 5(2) and (3), is the following:
(a) an outline of the content, main objectives of the plan or programme and relationship with other relevant plans and programmes;
(b) the relevant aspects of the current state of the environment and the likely evolution thereof without implementation of the plan or programme;
(c) the environmental characteristics of areas likely to be significantly affected;
(d) any existing environmental problems which are relevant to the plan or programme including, in particular, those relating to any areas of a particular environmental importance, such as areas designated pursuant to Directives 79/409/EEC and 92/43/EEC;
(e) the environmental protection objectives, established at international, Community or Member State level, which are relevant to the plan or programme and the way those objectives and any environmental considerations have been taken into account during its preparation;
(f) the likely significant effects on the environment, including on issues such as biodiversity, population, human health, fauna, flora, soil, water, air, climatic factors, material assets, cultural heritage including architectural and archaeological heritage, landscape and the interrelationship between the above factors;
(g) 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;
(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;
(i) a description of the measures envisaged concerning monitoring in accordance with Article 10;
(j) a non-technical summary of the information provided under the above headings."
"12.— Preparation of environmental report
(1) Where an environmental assessment is required by any provision of Part 2 of these Regulations, the responsible authority shall prepare, or secure the preparation of, an environmental report in accordance with paragraphs (2) and (3) of this regulation.
(2) The report shall identify, describe and evaluate the likely significant effects on the environment of–
(a) implementing the plan or programme; and
(b) reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme.
(3) The report shall include such of the information referred to in Schedule 2 to these Regulations as may reasonably be required, taking account of–
(a) current knowledge and methods of assessment;
(b) the contents and level of detail in the plan or programme;
(c) the stage of the plan or programme in the decision-making process; and
(d) the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment.
"5 Year Land Supply
6.51. A requirement of the NPPF is to identify a supply of specific deliverable sites sufficient to provide five years' worth of housing against housing requirements, with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land. Authorities with a 'record of persistent under delivery of housing' should increase the buffer to 20%.
6.52. The requirements for 5-year land supply relate to the short-term monitoring of housing delivery, not to the setting of the overall Plan housing target, so it is not necessary or appropriate to increase the overall housing target by 5% or 20%. This has been confirmed by the recent Inspectorate advisory visit (see paragraph 4.17 above).
6.53. Nevertheless, various respondents argue that housing provision will not be adequate to maintain a 5-year land supply and the Council has addressed this point in the tables below. These use the information in the trajectories at Appendices C and D [Appendix C was what I have referred to as Appendix F, as it was labelled when included as an appendix to the Core Strategy] to produce a 'rolling' 5-year land supply analysis. Based on the Local Plan Part 1 Trajectory (Appendix C) it can be seen that, apart from a problem in 2011/2012 (and no 'buffer' in 2012/2013) a five year land supply can be maintained in every year for the whole Plan period up until 2026. After 2026 there are not 5 years of the Plan period left, but the small housing requirement remaining (if any) is also met.
6.54. For the 'Stronger Market Conditions' Trajectory table (Appendix D) it can be seen that there is the same short-term problem in 2011/12, after which a five year land supply can be maintained in every year for the whole Plan period up until 2024/5. After 2024/5 the housing requirement is met and there is no 5-year requirement.
6.55. Therefore, an adequate land supply, whether using a 5% or 20% 'buffer' (equating to 5.25 or 6.0 years' supply respectively), can be maintained in each year except at the very start of the Plan period. The 'shortfalls' in the later part of the Plan period are because the remaining requirement is less than 5 years, so the necessary supply is also reduced, or the requirement is already met. At the beginning of the Plan period, the shortfall is caused by the fact that the strategic allocations will take some time to achieve higher levels of delivery, but it is clear that this is only a short-term issue and that it is soon overcome. This 'problem' is reduced under the 'stronger market conditions' scenario, where very substantial land supply exists until the housing requirement is met in 2024/25.
6.56. It is, therefore, concluded that there are various sources of land supply which are deliverable and reliable and will adequately meet the Local Plan's housing requirement. It is not appropriate or necessary for the Local Plan Part 1, which is a strategic document, to identify in detail each source of housing provision over the next 20 years. The key issue to be examined is whether the policy framework provided will enable an adequate level and distribution of housing to be provided. The detailed split between different sources of provision is a matter for Local Plan Part 2 to examine, but for the purposes of Local Plan Part 1, it is clear that there is ample scope for the Local Plan's housing requirements to be met from the sources discussed."
The Inspector's Report
"Issue 3 – Housing General
Policies CP1, WT1 and SH1
47. The extant SE Plan [the South East Plan] (POL1) (2009) has a requirement of 12,240 new dwellings for the district from 2006 to 2026 to meet housing needs. Notwithstanding the impending revocation, this plan has to remain in general conformity with that expectation, as well as addressing the objectively assessed local need for new housing in accord with the NPPF (para 17). In particular, the Council's most up date figures relating to affordable housing (EB124) (2012) indicate a requirement of around 370 units per year in the district.
48. Albeit somewhat dated, the extensive technical evidence underlying the SE Plan requirements remains relevant and reinforces the conclusion that residential development pressures are only likely to increase in adjoining areas if Winchester district does not fully address its own needs. Providing suitable and available capacity can be identified, without compromising other important objectives of the NPPF, such as the protection of the SDNP, there is no justification for any under-provision of new housing over the plan period.
49. The SE Plan figure is equivalent to 612 new houses per year. Albeit rolled forward 5 years from 2026 to 2031, a district total of 11,000, as submitted, would deliver an average of only 550 annually; effectively a reduction of about 10%. Although 550 a year would be materially greater than the recent average from 2000 to 2011, of about 486, based on the Council's affordable housing requirement figures (EB124) (2012) a total of 11,000 new homes would not provide appropriately for objectively assessed local needs.
50. Fortunately, the Council's work to date has identified potential capacity for at least 2,500 new houses in the MTRA [the Market Towns and Rural Areas part of WCC's district] by 2031 (see issue 8 below), rather than just the range of 1,500 to 2,500 units in the submitted plan. The higher figure has also been taken into account in the strategic level SA/SEA [Sustainability Appraisal] through the plan process so far. Given that all the larger settlements to which the main figures in policy MTRA 2 would apply are outside the SDNP, there should be no great difficulty in securing more than sufficient new housing land allocations to readily meet that higher figure over the plan period through the LP2 process [the process to develop the Local Plan 2, the next development plan document to be adopted by WCC] to which the Council is committed.
51. Moreover, the Council has acknowledged that the final total capacity of the proposed strategic site at North Whiteley, where a new town centre is nearing completion, is very likely to be more than the 3,000 units referred to in the submitted plan. Importantly, this would be so without needing to extend the site area already identified and assessed. It is also fully endorsed by the assembled consortium of experienced developers that stands ready to deliver the scheme and their professional advisors. Subject to suitable avoidance and mitigation measures being included to secure environmental/nature conservation interests, as required in policy SH3, a higher total of about 3,500 new houses is realistically deliverable by 2031.
52. Significantly, plan modifications to reflect these facts would not directly affect the new housing figure for Winchester itself. Nor would they result in an imbalance in growth between the three spatial areas set out in the plan, bearing in mind the total numbers involved, and that the plan's overall strategy would not be altered to any significant degree. For example, the percentage of new housing in Winchester would only reduce from around 36%, coincidentally almost exactly the same as its current percentage of the district's population, to around 32% or one third of the district total. Furthermore, all the available evidence indicates that infrastructure provisions would also be adequate or can be made so economically in connection with growth, for these somewhat higher numbers, as would other services, including water supply.
53. A total of 12,500 and an average rate of new housing delivery of 625 over the plan period would represent the positive approach to sustainable development required by the NPPF as it would reflect objectively assessed local needs for affordable housing. Moreover, the additional 2% or so would allow for a limited buffer of new housing land supply, as recommended in the NPPF (para 47). It would also help to take into account the likely upward movement of household growth in the medium to longer term if the economy improves from its present low base. A revised total of 6,000 new units in the two main site allocations outside Winchester (not 5,500) would also be closer to the implied housing target for the PUSH growth area of the district in the most recent South Hampshire Strategy document (OD28) (October 2012). …
54. The population projections used by representors to justify higher housing figures for the district (up to about 15,000 by 2031) essentially rely on a specific level of future job growth being required. They are essentially based on the premise that the only way of meeting that job growth over the plan period is through increased in-migration that would require extra housing. In contrast, demographic based projections, largely based on ONS and DCLG [Department for Communities and Local Government] methods, as used by Hampshire County Council for the Council, are less dependent on job forecasts and labour force projections that are inherently difficult to produce and affected by many uncertainties in the longer term.
55. This applies not least in respect of the performance of the local and national economy over time, compared to births and deaths, for example. Moreover, new jobs do not necessarily have to be filled by in migrants, given alternative sources such as lower local unemployment, later retirement and increased activity rates, including amongst the elderly/recently retired, as well as improved skills and training.
56. Therefore, a total new dwelling target of 12,500 across the district from 2011 to 2031, with a delivery rate of 625 per year on average, is considered to be realistic, as well as positive in terms of the economic growth of the district. This is so not only in relation to past delivery rates locally, albeit a material "step change" upwards, but also the reasonably assessed capacities of the main three strategic sites allocated in the plan and their realistic implementation prospects, including in respect of economic viability. Moreover, it would be generally consistent with the Council's "stronger housing market" scenario considered in Appendix D of the Housing Background Paper (BP1) (June 2012)."
"6. In the Duty to Co-operate Statement (SD9) and elsewhere the Council has satisfactorily documented where and when co-operation has taken place, with whom and on what basis, as well as confirming that such positive engagement will continue. This includes with all the authorities in the Partnerships for Urban South Hampshire (PUSH) area and particularly with Fareham BC and Havant BC in relation to the strategic land allocations at North of Whiteley and West of Waterlooville, as well as North of Fareham, the importance of which cannot be overstated in terms of new housing delivery. In the absence of any indication to the contrary, I am satisfied that the duty to co-operate has been met."
"The particular circumstances of any case require to be considered and the question must always be whether the appellant can properly be said to be aggrieved by what has happened. In deciding that question it will usually be a relevant factor that, through no fault of the council, the appellant has failed to state his objection at the appropriate stage of the procedure laid down by Parliament since that procedure is designed to allow objections and problems to be aired and a decision then to be reached by the council. The nature of the grounds on which the appellant claims to be aggrieved may also be relevant. We express no view on the merits of those advanced by the appellant, but we observe that they all relate to matters which he could have put, or endeavoured to put, to the council or to the reporter at the inquiry. Had he done so, his objections could have been considered at the due time. Instead of that, the appellant now seeks to have these issues reopened after the decision has been taken in accordance with the prescribed procedure. In these circumstances, having regard both to the nature of his interest in the site and to his failure to take the necessary steps to state these objections at the due time, the appellant cannot properly be regarded as 'a person aggrieved' in terms of [the relevant statutory provision]."
Ground One: Methodological error by the Inspector in his assessment of the proposed housing requirement
"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example, by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
Ground Two: Duty of co-operation under section 33A
i) Fareham BC and Eastleigh BC did raise concerns in relation to infrastructure provision at North Whiteley, which was close to their areas. In its pre-submission stage representations, Fareham BC maintained that WCC had not had due regard to the duty to co-operate. WCC addressed these concerns in the course of the examination in public. The Inspector concluded that those concerns were adequately addressed in the Core Strategy: see, in particular, paras. 77-79 and 80-82 of the Inspector's Report. As WCC submits, Fareham BC's concern as a matter of substance was not that there had been a failure by WCC to engage with it over matters of joint concern – WCC clearly had so engaged, as explained in the Duty to Co-operate Statement and again in its evidence in these proceedings – but rather that its concerns had not been accepted by WCC. The position was similar in relation to Eastleigh BC. But the duty to co-operate does not require that actual agreement should be achieved, only that proper efforts are made to address issues in a co-operative way. Indeed, it may often be the case that ultimate agreement cannot be reached, particularly where there are strong competing local interests between two or more authorities. In fact, in relation to infrastructure provision in respect of North Whiteley, Hampshire CC as the highway authority was in dispute with other authorities regarding the need for a by-pass around Botley and general agreement between all relevant authorities could not be achieved. What is important, however, is that the Inspector found that WCC had complied with its duty under section 33A and also that the Core Strategy was sound. Amongst other co-operative working arrangements, all these authorities engaged with each other through the PUSH arrangement. Neither WCC's conduct nor the Inspector's conclusions in relation to co-operation with Fareham BC or Eastleigh BC can be impugned as unlawful;
ii) In its pre-submission stage representations, Havant BC (another authority within PUSH) did not complain that WCC had failed to comply with the duty to co-operate, but did raise certain strategic issues which it argued should be accommodated within WCC's Core Strategy and made the point that WCC should make sure that it could accommodate all its additional housing needs within its own area, as Havant BC's area was subject to its own constraints. The Inspector considered the cross-boundary issues affecting Havant BC in the section of his Report dealing with the area West of Waterlooville (see, in particular, paras. 72-75), and again found that there had been compliance with the duty to co-operate and that the Core Strategy was sound. He also found, as set out in the Report (see, in particular, para. 59), that WCC's additional housing needs would be met within its own area, so Havant BC's further concern had been met. Again, neither WCC's conduct nor the Inspector's conclusions in relation to co-operation with Havant BC can be impugned as unlawful;
iii) Basingstoke & Deane BC did not object to the proposed Core Strategy. In fact, in its representations it indicated that it was happy with it. It did not consider that the Core Strategy had any significant negative impact in relation to its area. It did not suggest that there had been any failure by WCC to comply with its duty to co-operate. Accordingly, Basingstoke & Deane BC did not raise any concerns which required to be distinctly addressed by the Inspector in his Report. Instead, Mr Cahill relies on the fact that in March 2012 WCC made an objection to the additional housing requirement figure included in the proposed core strategy promulgated and consulted on by Basingstoke & Deane BC in relation to its own area. However, this objection does not show that there had been any failure of co-operation by WCC in drawing up the Core Strategy. As Mr Bedford submitted, if each local authority, in accordance with the approach they had agreed in the course of earlier co-operative work between them, made adequate provision for additional housing to meet the needs of its own area (and did not try to displace its housing requirements into the other's area) there would be no "strategic matters" with cross-boundary implications, so the duty to co-operate would not arise in relation to adoption of a development plan such as the Core Strategy which reflected that approach. For the purposes of consideration of WCC's Core Strategy, Basingstoke & Deane BC did not suggest that it would need to seek provision in the Core Strategy to meet its own additional housing needs nor that there was any strategic matter which arose to engage that duty. By contrast, if Basingstoke & Deane BC made under-provision for its own housing needs in its own core strategy and sought to have those needs met by WCC, such issues could arise in relation to the development of Basingstoke & Deane BC's core strategy. It was because WCC was concerned that Basingstoke & Deane BC might be making such an under-provision in its core strategy that WCC made representations in relation to that core strategy to object to it. There was no inconsistency in WCC's position. The duty to co-operate under section 33A potentially arose in relation to Basingstoke & Deane BC and its consideration of that core strategy. However, since both Basingstoke & Deane BC and WCC were agreed in relation to consideration of WCC's Core Strategy that Basingstoke & Deane BC would not seek to displace its own housing requirements into WCC's area, I do not consider that WCC acted unlawfully in any way in making the assessment that it did that no further engagement with Basingstoke & Deane BC was required under section 33A in relation to the preparation of WCC's own relevant development plan document, the Core Strategy. That was also the evidence of Basingstoke & Deane BC's position before the Inspector. The Inspector reviewed WCC's Duty to Co-operate Statement, which covered all co-operative working arrangements with neighbouring authorities, and concluded that WCC had complied with its duty. Again, neither his conclusion nor WCC's underlying conduct can be impugned as unlawful.
Ground Three: Failure to comply with the SEA Directive and the Environmental Assessment Regulations