QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT BIRMINGHAM
Priory Courts, 33 Bull Street, Birmingham, B4 6DS
B e f o r e :
| JJ GALLAGHER LTD
LONDON AND METROPOLITAN INTERNATIONAL DEVELOPMENTS LTD
|- and -
|CHERWELL DISTRICT COUNCIL
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
Hugh Flanagan (instructed by Cherwell District Council) for the First Defendant
Richard Kimblin (instructed by the Government Legal Department) for the Second Defendant
Hearing date: 9 February 2015
Crown Copyright ©
Mrs Justice Patterson:
i) Policy Bicester 13 fails to give effect to the inspector's reasons and adopting it as it stands is illogical and irrational;
ii) Policy Bicester 13 is inconsistent with policy ESD11 of the CLP and so the decision to adopt is illogical and irrational on the basis of its current wording also;
iii) The inspector failed to provide reasons for recommending adoption of policy Bicester 13 as drafted so that the first defendant's decision to adopt the plan is unlawful.
"Development Area: 23 hectares
Development Description: a housing site to the east of Bicester town centre. It is bounded by railway lines to the north and west and the A4421 to the east.
- Number of homes – 300 dwellings
- Affordable Housing – 30%.
Key site specific design and place shaping principles:
- That part of the site within the Conservation Target Area should be kept free from built development. Development must avoid adversely impacting on the Conservation Target Area and comply with the requirements of Policy ESD11 to secure a net biodiversity gain."
The supporting text to the policy reads:
"C104. The majority of the site is part of the River Ray Conservation Target Area. Part of the site is a Local Wildlife Site and is situated to the east of Bicester town centre. It is bounded by railway lines to the north and west. The site comprises individual trees, tree and hedgerow groups, and scrubland/vegetation. The Langford Brook water course flows through the middle of the site.
C105. The central and eastern section of the site contains lowland meadow, a BAP priority habitat. There are a number of protected species located towards the eastern part of the site. There are several ponds and a small stream, known as the Langford Book, which runs from north to south through the middle of the site. A range of wildlife has been recorded including butterflies, great crested newts and other amphibians, reptiles, bats and birds.
C106. There are risks of flooding on some parts of the site therefore mitigation measures must be considered. There is also a risk of harming the large number of recorded protected species towards the eastern part of the site. Impacts need to be minimised by any proposal. Approximately a quarter of the site is within Flood Zones 2 and 3 therefore any development would need to be directed away from this area.
C107. Although there are a number of known constraints such as Flood Zone 3, River Ray Conservation Target Area and protected species, this could be addressed with appropriate mitigation measures by any proposal."
"Where development is proposed within or adjacent to a Conservation Target Area biodiversity surveys and a report will be required to identify constraints and opportunities for biodiversity enhancement. Development which would prevent the aims of a Conservation Target Area being achieved will not be permitted. Where there is potential for development, the design and layout of the development, planning conditions or obligations will be used to secure biodiversity enhancement to help achieve the aims of the Conservation Target Area."
"Requests that the developable area shown on the policies map should be reduced to avoid any building in the whole of the River Ray Conservation Target Area, as distinct from the smaller Local Wildlife Site, would significantly undermine this contribution. It would also potentially render the scheme unviable or at the very least unable to deliver a meaningful number of new affordable units, as required under policy BSC 3, when all other necessary contributions are also taken into account. Moreover, it could well materially reduce the potential for the scheme to contribute to enhancement of the Local Wildlife Site's ecological interest as part of the total scheme, thereby effectively achieving the main objective of the Conservation Target Area. Consequently, it would not represent a reasonable, realistic or more sustainable alternative to the proposals set out in the plan, as modified."
"Requests that the developable area shown on the policies map should be reduced to avoid any building in the whole of the River Ray Conservation Target Area would significantly undermine this contribution. It would also potentially render the scheme unviable or at the very least unable to deliver a meaningful number of new affordable units, as required under policy BSC 3, when all other necessary contributions are also taken into account. Moreover, it could well materially reduce the potential for the scheme to contribute to enhancement of the Local Wildlife Site's ecological interest as part of the total scheme, thereby effectively achieving the main objective of the Conservation Target Area. Consequently, it would not represent a reasonable, realistic or more sustainable alternative to the proposals set out in the plan, as modified."
"135. This area of largely flat land, bounded by railway lines to the north and west, the ring road to the east and residential development to the south lies to the east of Bicester town centre in a very sustainable location. Planning permission has previously been granted for new housing but that has now expired. In view of the need for additional sites to help meet OANs it is still considered suitable in principle to accommodate new development. However, the eastern part is now designated as a Local Wildlife Site, with the central/eastern sections containing lowland meadow; a BAP priority habitat.
136. Additionally, roughly a quarter of the site lies in Flood Zones 2 and 3 adjacent to the Langford Brook that runs north-south through the centre of the site. The majority also lies within the River Ray Conservation Target Area. Nevertheless, even with these constraints, indicative layouts demonstrate that, taking into account appropriate and viable mitigation measures, the site is capable of delivering around 300 homes at a reasonable and realistic density not greatly different from that of the modern housing to the south.
137. In addition to necessary infrastructure contributions towards education, sports provision off site, open space, community facilities and public transport improvements, a number of other specific requirements are needed under policy Bic 13 for this proposal to be sound, in the light of current information about the site's ecological interests and environmental features. In particular, that part of the allocation within the Local Wildlife Site east of Langford Brook (just under 10 ha) needs to be kept free from built development and downstream SSSIs protected through an Ecological Management Plan prepared and implemented to also ensure the long term conservation of habitats and species within the site. Landscape/visual and heritage impact assessments and archaeological field evaluation are also required.
138. There must also be no new housing in flood zone 3 and the use of SUDs to address flood risks will be required. Subject to such modifications (MMs 89-91), policy Bic 13 is sound and would enable this site to make a worthwhile contribution to new housing needs in Bicester and the district in a sustainable location. This can be achieved without any material harm to environmental or ecological interests locally as a result of the various protection, mitigation and enhancement measures to be included in the overall scheme.
139. Requests that the developable area shown on the policies map should be reduced to avoid any development in the whole of the River Ray Conservation Target Area would significantly undermine this contribution. It would also potentially render the scheme unviable or at the very least unable to deliver a meaningful number of new affordable units, as required under policy BSC 3, when all other necessary contributions are also taken into account. Moreover, it could well materially reduce the potential for the scheme to contribute to enhancement of the Local Wildlife Site's ecological interest as part of the total scheme, thereby effectively achieving the main objective of the Conservation Target Area. Consequently, it would not represent a reasonable, realistic or more sustainable alternative to the proposals set out in the plan, as modified.
140. Similarly, despite the historic interest of the parts of the site in terms of their long established field patterns and hedges, this does not amount to a justification for the retention of the whole of the land east of the Langford Brook as public open space, nor for its formal designation as Local Green Space. This is particularly so when the scheme envisaged in the plan should enable the more important LWS to be protected with funding made available for enhancement at a time when the lowland meadow habitat is otherwise likely to deteriorate further without positive action. Such an approach would be capable of ensuring no net loss of biodiversity as a minimum and also compliance with policies ESD 10 and 11 as a result.
141. All in all the most suitable balance between the need to deliver new housing locally and to protect and enhance environmental assets hereabouts would essentially be achieved through policy Bic 13, as modified, and the land's allocation for 300 new homes on approximately 23 ha in total, given that the requirements of policies ESD 10 and 11, including to achieve a net gain in biodiversity arising from the scheme as a whole, can also be delivered as part of an overall package of development with appropriate mitigation measures."
"That the designation of the Conservation Target Area at Gavray Drive (Policy Bicester 13) as a designated Local Green Space through the forthcoming stages of the Cherwell Local Plan Part 2 be positively pursued."
"My understanding is that a proper case was not made for the land being a Local Green Space as part of Part 1. There is thought to be a more robust case available to support it, this time with full public consultation engagement and that the appropriate mechanism for this is Part 2. It is policy officers' view that the adopted site allocation policy prevents any built development in the CTA in any event though this does not preclude appropriate provision of associated public open space etc as part of a development in the CTA. The provision of such open space and facilities is thought to be unlikely to be inconsistent with the Local Green Space designation if this does indeed take place. Therefore proceeding with attempts to designate part of the CTA as a Local Green Space as Part 2 of the Local Plan is not thought to be at odds with achieving the development provided for in the site allocation policy."
Legal and Policy Framework
i) A local planning authority is to prepare a scheme of development plan documents: section 15(1).
ii) The development plan documents must set out the authority's policies relating to the development and use of land in their area: section 17(3).
iii) In preparing a local development plan document the local planning authority must have regard to the matters set out in section 19 such as national policy: section 19(2)(a).
iv) Each local development plan document must be sent to the Secretary of State for independent examination: section 20(1).
v) The local development plan document must only be sent for examination if the relevant requirements have been complied with and the plan is thought to be ready: section 20(2).
vi) Section 20(5) provides that the purpose of an independent examination is to determine whether the development plan documents satisfy the requirements of section 19 and section 24(1) (regulations under section 17(7) and any regulations under section 36 relating to the preparation of development plan documents), whether the plan is sound and whether the local planning authority has complied with its duty to cooperate.
vii) The purpose of an independent examination is to determine in respect of the development plan document whether it is sound: section 20(5)(b).
viii) If the inspector finds that the plan is sound he must recommend adoption of the plan and give reasons for his recommendation.
"……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; and
- Consistent with national policy – the plan should enable the delivery of sustainable development in accordance with the policies in the Framework."
Issue One: Is Policy Bicester 13 Ambiguous?
i) It is plainly impossible to give effect to the fundamental purpose of the allocation if the contentious words are interpreted as both the claimants and first defendant contend as 300 dwellings could not be built;
ii) There is an obvious alternative reading to these contentious words, namely, that some but not all of the CTA may be built upon;
iii) The supporting text to the policy explains and makes clear that the majority of Gavray Drive is in the CTA but the plan allocates the whole site and further makes clear that the development will assist in funding improvements to CTAs;
iv) Development within CTAs is fully and expressly anticipated in the plan; see ESD11. The supporting text to ESD11 explains that development may contribute to the objectives of CTAs and fund enhancements;
v) The inspector's report is crystal clear in its findings on the issue: see paragraphs 139 and 140;
vi) Both the claimants and first defendant participated fully in the examination and understood the background, the issues and the result.
Discussion and Conclusions
"I do not think it is necessary, or appropriate, to resort to other documents to help with the interpretation of Policy SS2. In the first place, the policy is neither obscure nor ambiguous. Secondly, the material on which Mr Edwards seeks to rely is not part of the core strategy. It is all extrinsic – though at least some of the documents constituting the evidence base for the core strategy are mentioned in its policies, text and appendices, and are listed in a table in Appendix 6. Thirdly, as Mr Moules and Mr Brown submit, when the court is faced with having to construe a policy in an adopted plan it cannot be expected to rove through the background documents to the plan's preparation, delving into such of their content as might seem relevant. One would not expect a landowner or a developer or a member of the public to have to do that to gain an understanding of what the local planning authority had had in mind when it framed a particular policy in the way that it did. Unless there is a particular difficulty in construing a provision in the plan, which can only be resolved by going to another document either incorporated into the plan or explicitly referred to in it, I think one must look only to the contents of the plan itself, read fairly as a whole. To do otherwise would be to neglect what Lord Reed said in paragraph 18 of his judgment in Tesco Stores Ltd. v Dundee City Council: that '[the] development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it', that the plan is 'intended to guide the behaviour of developers and planning authorities', and that 'the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained'. In my view, to enlarge the task of construing a policy by requiring a multitude of other documents to be explored in the pursuit of its meaning would be inimical to the interests of clarity, certainty and consistency in the 'plan-led system'. As Lewison L.J. said in paragraph 14 of his judgment in R. (on the application of TW Logistics Ltd.) v Tendring District Council  EWCA Civ 9, with which Mummery and Aikens L.JJ agreed, 'this kind of forensic archaeology is inappropriate to the interpretation of a document like a local plan …'. The 'public nature' of such a document is, as he said (at paragraph 15), 'of critical importance'. The public are, in principle, entitled to rely on it 'as it stands, without having to investigate its provenance and evolution'."
Issue Two: Was the Inspector's Report and Consequent Recommendation on Bicester 13 Irrational and/or Inadequately Reasoned?
Discussion and Conclusions
i) Policy Bicester 13 adopted by the first defendant on 20 July 2015 be treated as not adopted and remitted to the second defendant;
ii) The second defendant appoint a planning inspector who recommends adoption of policy Bicester 13 subject to a modification that deletes from the policy the words "that part of the site within the Conservation Target Area should be kept free from built development";
iii) The first defendant adopts policy Bicester 13 subject to the modification recommended by the planning inspector appointed by the second defendant.
Discussion and Conclusions
"(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."