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J S Bloor (Northampton) Ltd. & Anor v Warwickshire County Council  EWHC 334 (Admin) (1st March, 2002)
| || ||Neutral Citation Number:  EWHC 334 (Admin)|
| || ||Case No: CO/3949/2001|
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
| || ||Royal Courts of Justice|
London, WC2A 2LL
| || ||1st March 2002|
B e f o r e :
THE HONOURABLE MR JUSTICE RICHARDS
| || J S BLOOR (NORTHAMPTON) LIMITED|
WILLIAM DAVIS LIMITED
| ||- and -|
| ||WARWICKSHIRE COUNTY COUNCIL||Defendant|
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
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Mr Ian Dove (instructed by Hammond Suddards Edge) for the Claimants
Mr Mark Lowe QC and Mr Robin Green (instructed by Solicitor to Warwickshire County Council) for the Defendant
HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
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Mr Justice Richards:
- This is a challenge under s.287 of the Town and Country Planning Act 1990 to the adoption of the Warwickshire Structure Plan (“WASP”) on 10 July 2001 by Warwickshire County Council, the strategic planning authority for the area. The claimants, who are developers, make a number of complaints about the process leading to the adoption of the plan and submit that the plan is unlawful and should be quashed in so far as it relates in particular to policy GD5. The council is the sole remaining defendant to the challenge. The Secretary of State was originally joined as first defendant but withdrew as a defendant following the discontinuance of the claimants' challenge under the European Convention of Human Rights.
- The specific context within which the claim is brought is that the claimants applied on 31 May 2000 for outline planning permission for residential development of land at Long Lawford, to the west of Rugby. The land was allocated for residential purposes in the Rugby Borough Local Plan and the proposed development was in material respects in accordance both with the Local Plan and with the Structure Plan as it existed at the time of the application. The newly adopted WASP, however, has created a very different situation. The apparent effect of policy GD5, in particular, is that the development is no longer in accordance with the development plan, though an actual decision on that point is a matter for the Secretary of State. The planning application has been called in, an inspector has been appointed, has held a public inquiry and has submitted his report, and a decision by the Secretary of State is awaited.
- Although the claimants rely on the adverse effect of the WASP upon their interests in the Long Lawford site, the issues are also important for other sites in Warwickshire that have previously been allocated for residential development under local plans.
- The issues are heavily fact dependent and are best explained after setting out the factual history. First, however, I will set out the statutory framework in order to provide the legal context for the factual history and the matters arising out of it.
- Section 31(2) of the Town and Country Planning Act 1990 provides that a structure plan shall contain a written statement formulating the authority’s general policies in respect of the development and use of land in their area. The main function of the structure plan is to state in broad terms the general policies and proposals of strategic importance for the development and use of land in the area, taking account of national and regional policies (see s.31(6) of the 1990 Act and PPG12, paragraph 3.7). Plans should be as up-to-date as possible, particularly in view of their status in the determination of planning applications and as a means of encouraging development in appropriate locations (PPG 12, paragraph 2.20).
- Section 32 of the 1990 Act contains provisions concerning the alteration and replacement of structure plans:
“(1) A local planning authority may at any time prepare proposals –
(a) for alterations to the structure plan for their area; or
(b) for its replacement.
(5) Proposals prepared under this section shall be accompanied by an explanatory memorandum.
(6) The explanatory memorandum shall state –
(a) the reasons which in the opinion of the authority justify each of their proposals;
(b) any information on which the proposals are based;
(c) the relationship of the proposals to general policies for the development and use of land in neighbouring areas which may be expected to affect the area to which the proposals relate,
and may contain such illustrative material as the authority think appropriate.
(7) Proposals for the alteration or replacement of a structure plan shall not become operative unless they are -
(a) adopted by the authority (under s.35); or
(b) approved by the Secretary of State (under s.35A).”
- Section 33 contains provisions relating to public participation in the process, providing inter alia for the authority to make copies of the proposals and the explanatory memorandum available for inspection, for objections to be made in accordance with regulations made under the section, and for any such objections to be considered before proposals are adopted.
- Section 35 governs the adoption of proposals. It reads:
“(1) Subject to subsection (3) and section 35A and 35B, the local planning authority may by resolution adopt proposals for the alteration or replacement of a structure plan, either as originally prepared or as modified so as to take account of -
(a) any objections to the proposals; or
(b) any other considerations which appear to them to be material.
(2) If it appears to the Secretary of State that the proposals are unsatisfactory he may, at any before the local planning authority have adopted the proposals, direct the authority to modify the proposals in such respects as are indicated in the direction.
(3) An authority to whom such a direction is given shall not adopt the proposals unless -
(a) they satisfy the Secretary of State that they have made the modifications necessary to conform with the direction; or
(b) the direction is withdrawn.
(4) Subject to the following provisions of this Chapter and to section 287, proposals for the alteration or replacement of a structure plan shall become operative on the date on which they are adopted.”
- Section 35A confers on the Secretary of State a power to call in proposals for approval by him at any time before the local planning authority has adopted them.
- Section 35B adds an important stage to the process, making provision for proposals to be subject to an examination in public before they are adopted:
“(1) Before adopting proposals for the alteration or replacement of a structure plan, the local planning authority shall, unless the Secretary of State otherwise directs, calls an examination in public to be held of such matters affecting the consideration of the proposals as -
(a) they consider ought to be so examined; or
(b) the Secretary of States directs.
(3) An examination in public shall be conducted by a person or persons appointed by the Secretary of State for the purpose ….”
- Further provisions relating to structure plans are to be found in the Town and Country Planning (Development Plan) (England) Regulations 1999, replacing with effect from 4 January 2000 similar regulations made in 1991. Although the 1991 Regulations were in force for part of the relevant period, I shall refer only to the 1999 Regulations, which are in materially the same terms.
- Regulation 9(2) of the 1999 Regulations provides that the explanatory memorandum accompanying proposals for the alteration or replacement of a structure plan shall contain a statement of the regard which the local planning authority has had in formulating its general policies to the matters specified in s.31(6) of the 1990 Act and to the additional matters specified in regulation 9(1). The 1990 Act and 1999 Regulations do not prescribe any particular form for the explanatory memorandum. The guidance given in paragraph 22 of PPG12 is that:
“The explanatory memorandum, which may also contain such illustrative material as the authority think appropriate, is not part of the plan, and this distinguishes it from the reasoned justification which is part of a UDP and local plan. But authorities may, if they wish, bind the explanatory memorandum into the same document as the plan as long as its status is clear.”
- Regulation 14 of the 1999 Regulations governs the examination in public (“EIP”). Non-statutory guidance issued by the Secretary of State in the form of a Code of Practice on Structure Plans describes the purpose of the EIP as follows (paragraph 22):
“The aim of holding an EIP is to provide the authority with more information through public discussion of certain issues before reaching decisions on the plan. The EIP takes place before an independent Chair, appointed by the Secretary of State, supported by one or more other experts to form a panel. The objectives are to find out the relevant facts and arguments and to report to the authority, giving an opinion on the merits of the evidence and making recommendations about modifications which could be made to the plan (including the deletion from the plan of any material which should not have been included in it).”
- Regulation 15 of the 1999 Regulations governs consideration of proposals following an EIP. The authority is not bound by the recommendations in the report of the panel conducting the EIP, but is required to prepare a statement of the decisions they have reached in the light of the report and recommendations contained in the report, together with the reasons for those decisions; and where it intends not to accept one or more of the recommendations, it is specifically required to give notice of the intention and to invite objections and representations. Moreover by regulation 17, where an authority proposes to modify its proposals, it is required to prepare a list of the modifications with reasons for proposing them (unless satisfied that the proposed modifications will not materially affect the content of the proposals), and again to give notice and to invite objections and representations.
- Regulations 18 and 19 of the 1999 Regulations govern the giving of notice of intention to adopt, and the actual adoption of, proposals for the alteration or replacement of the structure plan.
- The deposit draft of the structure plan was placed on deposit in September 1998. Policies GD3 and GD5, each of which was accompanied by an explanatory text, read as follows:
“Policy GD3. Most new developments will be directed towards urban locations because they offer the best prospect of expanding public transport and job opportunities across the community. So living in towns should be made more attractive, new housing and industry should be located within easy access by public transport into the main town centres in the County, and Coventry or Birmingham.
(a) This urban development should be planned in a compact and disciplined form, as far as possible avoiding the Green Belt, and controlled to use brownfield and greenfield land in the proportions indicated in this Plan.
(b) New housing and industry should be developed in tandem with supporting integrated transport, education, leisure, sport and other necessary facilities in the same broad locations.
(c) Developments should be planned so that provision for all of the necessary supporting infrastructure and services can be secured.
Policy GD5. Within each district area local plans should provide for most new housing and industrial development beyond existing commitments in the form of the expansion of existing towns, outside the Green Belt (except as identified in policy GD6), in transport corridors and with easy access to the town centres, in the following broad locations;-
Rugby: Coten, Swift Valley, Malpass Farm, Cawston and East of Rugby ….”
- Among the representations received was an objection on behalf of JS Bloor Limited, the parent company of the first claimant, to policy GD5 insofar as it sought to specify locations for future development. It was submitted that reference to the specific “broad locations” should be deleted. Representations on behalf of the second claimant supported the overall thrust of GD5 but suggested detailed re-wording.
- An EIP into the deposit draft was held in April-May 1999. The report of the panel appointed to carry out the EIP was received by the authority on 14 July 1999 and approved for publication on 13 September 1999. In the report the panel stated (at para 4 of the foreword) that the authority's explanatory memorandum was taken to be the explanatory text in the written statement booklet together with the accompanying explanatory video. The panel acknowledged that the explanatory text referred to three technical papers, including a housing technical paper. It appreciated that the legislation gave the authority discretion over the scale and nature of the reasoned justification provided, but expressed the opinion that the authority’s interests would be better served by the extension of the limited reasoned justification currently provided. The panel therefore recommended (paragraph 9 of the foreword):
“We recommend that the form and content of WASP be reviewed in order to ensure that the public interest is provided with an adequate reasoned justification for all policies and proposals.”
- In chapter 5 of the report the panel examined the proposed distribution of new housing across the area, as set out in policy H1. The chapter is relevant to consideration of the first issue but does not need to be examined in greater detail here.
- Chapter 6 examined the question whether the plan should identify broad locations for the concentration of growth, as in policy GD5, and whether those broad locations were in line with government policy and other policies in the plan. The authority’s view was that WASP needed to identify specific broad locations for the majority of development to secure the implementation of the plan’s strategy. The panel took a different view. It did not think that the approach met the spirit of the advice in PPG12, which seemed to envisage that the identification of broad locations of major growth areas was to be applied in specific cases for particular reasons, rather than as the norm (paragraph 6.22). The panel acknowledged that specific cases existed for two sites, but went on:
“6.23 … Otherwise we consider that the Council has not demonstrated a specific need to identify broad locations for development within districts. We are not convinced that this is essential to delivering the Plan’s strategy, and indeed many of the places named in the policy are not truly major growth areas, and some are simply existing commitments. Instead, we believe that the WASP should set out clearly a set of criteria for development control and local planning purposes, to guide the locations of future development, and are not persuaded that this would be unworkable ….
6.24 We see no reason why the policy could not make clear that greenfield development would follow the exhaustion of development of suitably-located brownfield sites …. Insofar as policy GD5 refers to the expansion of existing towns, this term needs to be defined for clarity, and we suggest that it should be employed to refer to the main towns in the county having a population exceeding 8,000 ….
6.25 Apart from the commitments (where there was little opposition to those being renewed at the end of the Plan period if not fully taken up), there were mixed views from participants about development at many of the broad locations listed. From the limited information before us we do not think that WCC has justified the inclusion of at least some of those locations at this stage (e.g. south of Warwick/Leamington or east of Rugby) and can see that they do have some disadvantages. This paucity of information was a major concern of some participants, and we can sympathise with that. Had we been presented with adequate and cogent evidence we might have been prepared to endorse particular locations, if we had also been convinced that that was needed in strategic terms.
6.26 Nor have the new locations been tested through the local planning process and we can see that the inclusion of such place names now would needlessly stifle or prevent debate later. In all these circumstances we cannot support the inclusion in WASP of a list of broad locations for development. In the light of this, we refrain from commenting on the merits of the places named in policy GD5 where these are new commitments, some of which (at least) need to be studied further before decisions are made. We see no reason why this cannot be accomplished through the local planning process, in the context of a criteria-based policy such as we suggest. Conversely, we see no reason for WASP to resist the renewal of existing local plan commitments, and consider that this could be recognised in the policy in a general way ….”
- That reasoning was embodied in a series of recommendations in relation to policy GD5 (paragraph 6.27):
“1. Policy GD5 should be deleted in its present form and replaced with a criteria-based policy which sets out the criteria to be met by any proposed development of a strategic nature, and without a list of broad locations.
2. The policy should make clear that where such development involves greenfield sites, this would follow the exhaustion of development of suitably-located brownfield sites.
3. The policy should provide for the renewal of existing planned commitments where these have not been taken up.
4. Any reference to towns should be clarified either in the policy or accompanying Explanatory Memorandum to make clear the size of town included ….”
- The panel’s report was considered by a working party of the council, which produced a report for the executive committee. On 25 January 2000 the executive committee accepted modifications proposed by the working party. In relation to the panel’s recommendation that the form and content of WASP be reviewed, the decision was to accept the recommendation. The proposed action was: “Expanded Explanatory Memorandum will be produced to accompany written statement once the Structure Plan is adopted.” The panel’s recommendations in relation to housing distribution were accepted. In relation to development locations and policy GD5, the recommendation that the policy should be deleted in its present form and replaced with a criteria-based policy was accepted in part. The proposed action was: “Policy GD5 to be modified as a criteria-based policy, with a continued reference to East of Rugby as one criteria.” The other relevant recommendations relating to Policy GD5 were accepted, with a statement that policy GD5 would be modified accordingly.
- The actual terms of the proposed modification to policy GD5 (modification no.7), as formulated by the working party and accepted by the executive committee, were as follows:
“Policy GD5. Each district local plan will provide for most new housing and industrial development to be accommodated in a combination of the following locations, in the following order of priority:
1. within the existing built-up areas of towns of over 8,000 people (at 1991), that lie within recognised transport corridors
2. the identified broad locations;
b. in Rugby Borough: East of Rugby ….
3. locations, including existing local plan allocations, meeting the following criteria:
i. adjacent to the built-up areas of towns of over 8,000 people (at 1991), that lie within recognised transport corridors, where they can be integrated into the fabric of the town; and are
ii. outside of the Green Belt; and are
iii. easily accessible to town centre services and facilities; and are
iv. well served, or can be made to be well served, by public transport
Local plans should allocate and provide for brownfield sites where they meet these criteria. Where there are no appropriate brownfield sites, or they have become exhausted, local plans should then provide for the release of greenfield sites that meet the criteria of this policy.”
- The most important changes to the deposit draft version of policy GD5 were that the words “beyond existing commitments” in the first part of the policy were deleted; existing allocations under local plans were made subject to the requirement that they meet the criteria in paragraph 3, including the criterion that they be adjacent to the built-up areas of towns of over 8,000 people; and existing allocations were lower in the order of priorities than the identified broad locations, including East of Rugby.
- The modified policy was followed by a statement of reasons, to which I shall refer when considering the issues.
- There was also a proposed modification of policy GD3 (modification no.5), for the stated reason of providing clarity and consistency, particularly with policy GD5. The only material change was that in the first line the reference to “urban locations” was replaced by a reference to “towns of over 8,000 people (at 1991)”.
- Numerous objections were received to the proposed modifications. Objections submitted by consultants acting for, amongst others, the parent company of the first claimant objected to several of the modifications and stated in their covering letter dated 24 March 2000:
“You will note from the objections to the proposed modifications that they raise a series of fundamental issues, especially in relation to strategic housing policy, which indicate a clear need for further detailed assessment. Accordingly, we would request that the County Council re-open the Examination in Public at the earliest opportunity so that these issues can be addressed.
My Clients consider that the nature of their objections warrants radical action on the part of the County Council having regard to the relevant changes in planning circumstances that have occurred since the Examination in Public and receipt of the Panel’s Report.”
- In relation to proposed modification no.5 (policy GD3), the representation was that reference to a size threshold should be deleted. In relation to proposed modification no.7 (policy GD5), the representations included the following:
“2.2.4 Proposed Modification Number 7 clearly does not meet this recommendation [as to a criteria-based policy]. Moreover, it is considered that the County Council’s response is a thinly disguised attempt to go against the Panel’s recommendations and to retain reference to broad locations by continuing to refer to … East of Rugby …and towns of over 8,000 people (at 1991). The revised Policy GD5 also does not provide a context for the renewal of existing plan commitments where these have not been taken up as per Panel Recommendations 6.27(3) and as now referred to in PPG3.
2.2.9 Policy GD5 should therefore be re-drafted so that the criteria more accurately reflect the Panel’s recommendations and more significantly take on board the advice in recently published PPG3, which provides specific guidelines on the criteria to be employed in determining the order in which sites should be identified (see paragraphs 30 and 31 of PPG3).”
- Representations on behalf of the second claimant were to the effect that reference to land east of Rugby should be deleted from Policy GD5. Rugby Borough Council also objected to the retention of East of Rugby as a broad location.
- Objections were also submitted by the Government Office for the West Midlands ("GOWM"), by letter dated 27 March 2000, referring in particular to the fact that three new Planning Policy Guidance Notes had been issued since the close of the EIP (PPGs 3, 10 and 12). In relation to PPG3 the letter observed that the council had not been able to take it into account in preparing the modifications. In relation to modification no. 5 (policy GD3), it was stated inter alia that the policy should be reviewed in the light of PPG3, especially paragraphs 30-32. In relation to modification no. 7 (policy GD5), it was stated:
“This policy should be reviewed in the light of PPG3. Policy sub-section 3(i)-(iv). The supporting text which is assumed now to form part of the Explanatory Memorandum may be in conflict with paragraphs 30, 31 and 32 of PPG3.
Delete references to brownfield and replace with 'previously developed land including re-using buildings and conversions' – see also PPG3 Annex A, C.
‘East of Rugby – Masts site’ should be reviewed in the light of Annex C of PPG3.”
- The objections referred to the version of PPG3 issued in March 2000. Paragraphs 30 and 31 of that version are particularly pertinent:
“In identifying sites to be allocated for housing in local plans and UDPs, local planning authorities should follow a search sequence, starting with the re-use of previously-developed land and buildings within urban areas identified by the urban housing capacity study, then urban extensions, and finally new development around nodes in good public transport corridors. They should seek only to identify sufficient land to meet the housing requirement set as a result of the RPG and strategic planning processes. In doing so they do not need to consider all the land in their area: they should not extend the search further than required to provide sufficient capacity to meet the agreed housing requirements.
31. In deciding which sites to allocate for housing in local plans and UDPs, local planning authorities should assess their potential and suitability for development against each of the following criteria:
- the availability of previously-developed sites and empty or under-used buildings and their suitability for housing use;
- the location and accessibility of potential development sites to jobs, shops and services by modes other than the car, and the potential for improving such accessibility;
- the capacity of existing and potential infrastructure, including public transport, water and sewerage, other utilities and social infrastructure (such as schools and hospitals) to absorb further development and the cost of adding further infrastructure;
- the ability to build communities to support new physical and social infrastructure and to provide sufficient demand to sustain appropriate local services and facilities; and
- the physical and environmental constraints on development of land, including, for example, the level of contamination, stability and flood risk, taking into account that such risk may increase as a result of climate change.”
Further, paragraph 38 of PPG3 provides that "where the planning application relates to development of a greenfield site allocated for housing in an adopted local plan or UDP, it should be assessed, and a decision made on the application, in the light of the policies set out in this guidance." Mention should also be made of paragraph 21 of PPG3, which stated that the Government was committed to promoting sustainable patterns of development by, inter alia, "reviewing existing allocations of housing land in plans … when they come up for renewal".
The objections received were summarised and considered in a report of the Director of Planning, Transport and Economic Strategy dated 14 April 2000. It will be necessary to look further at some of the detail of that report, in particular as regards East of Rugby. The report concluded in paragraph 3.1:
“The vast majority of objections to the proposed modifications do not raise issues that justify either further consideration at a re-opening of the EiP or further proposed modifications. PPG3 is often quoted as a basis for reviewing the proposed modifications, in part at least because it happens to be the one major national planning policy publication by Government that post-dates the WASP EiP. In some cases PPG3 is being used to try and resurrect arguments lost at the EiP. However, even PPG3 brings very little that is new or different to the proposed modifications. In fact, it may be the case that WASP and the EiP Panel's report have shown the way to PPG3.”
The report went on to identify two possible exceptions, neither of them material to the present issues, that might justify a further round of proposed modifications.
The report was considered by the council’s working party on 27 April 2000. There was then a further report by the working party to the council’s Cabinet, which was considered on 25 May 2000. That report, reflecting the advice of the Director, recommended two immaterial further modifications. The report also gave further consideration to the identification of East of Rugby in policy GD5. The Cabinet deferred consideration of approval of further modifications and noted that the Rugby Borough Council and Rugby Area Committee would need to be involved in consultations over proposals concerning land to the East of Rugby. The Rugby Area Committee considered these matters on 8 June, with the benefit of a report from the Director of Planning, Transport and Economic Strategy. The committee supported the continued identification of East of Rugby in policy GD5. The views of the committee were communicated to the council’s Cabinet on 15 June 2000, when the Cabinet resolved to propose the further round of modifications. That was agreed to at a council meeting on 13 July 2000 and the further proposals were put on deposit between 27 July and 6 September 2000.
In a letter dated 1 September 2000, GOWM restated its concerns about the plan in its then form and indicated a strong likelihood that ministers would wish to direct changes to certain policies before the plan could be adopted. Concern was expressed about the explanatory memorandum. Amongst concerns about specific policies the following was said in relation to policy GD5:
“The criteria at 3 (which apply both to industrial and housing development) are not in accord with the criteria set out in paragraphs 30 and 31 of PPG3. This is especially relevant as new housing policy 15 specifically requires Stratford District Council to review their existing housing provision in the light of the locational criteria of the Structure Plan and not PPG3.
In our view the locational criteria should be amended to make it clear that for housing development a search sequence should be followed as set out in paragraph 30 and that the potential and suitability of sites should be assessed against the criteria at paragraph 31.
Another approach could be to modify the Policy making it clear it applied to industrial development only.”
On 6 March 2001 the matter came back for consideration by the council’s Cabinet. A report of the Director of Planning, Transport and Economic Strategy referred both to representations received in respect of the further proposed modifications placed on deposit between July and September 2000 and to the letter of 1 September 2000 from GOWM. The report stated that following receipt of the letter from GOWM, discussions had been held with the office in a bid to overcome its concerns. The report went on:
“3.2 Previously GOWM had suggested that these policies be reviewed in relation to PPG3 and the advice of your Officers has been that there has been no significant conflict with PPG3 – the usual test that is applied to development plan policies in relation to Government policy. However, Government is anxious to avoid any possibility of misinterpretation of the Structure Plan, which may not be a reflection of the new policy direction encompassed in PPG3.
3.3 As a result of discussions your Officers have concluded that Government’s concerns should be met by minor editorial amendments to Policies H3, H4, GD5 and ER1…”
The minor editorial amendments to policy GD5 related only to the tailpiece which, as amended (and showing the amended words in italics), read:
“In considering the allocation and release of land, local plans should have regard to the availability to previously developed land and allocate and provide for brownfield sites to come forward where they meet these criteria. Where there are no appropriate brownfield sites, or they have become exhausted, local plans should then provide for the release of greenfield sites that meet the criteria of this policy”
The recommendations in the report were accepted by the council’s Cabinet which resolved to refer the matter to the full council. A decision by the full council was initially postponed, but on 10 July 2001 it resolved to adopt WASP in its modified form.
Meanwhile an "explanatory memorandum" had been prepared. There exists a draft dated May 2001 but it was not actually published until 4 July 2001, a few days before the resolution to adopt WASP itself. I refer to "explanatory memorandum" in quotation marks because the claimants does not accept that the document met the statutory conditions for an explanatory memorandum. The document contained a lengthy section on policy GD5, explaining that the policy "is intended to be the 'servant' of Policy GD3, directing local plans as to how they should go about allocating specific sites and framing criteria based locational policies in a way which is consistent with the overall strategy of WASP as set out in Policy GD3". In the detailed exposition it was stated inter alia that:
“2.5.8 Policy GD5 … also reflects the radical change in Government policy evident in PPG3. In considering the sequential approach to housing development of PPG3, the County Council has had regard to the circumstances prevalent in Warwickshire ….
2.5.13 In all instances local plans will be expected to pursue the general policy goals in PPG3 para 31 that are not expressly covered in Policy GD5 … Whilst WASP is generally in conformity with Government guidance and principles, the locational priorities set out in Policy GD5 diverge slightly from the sequential search in PPG3 …. A departure from Government guidance is acceptable under PPG12 Development Plans, where justified by local circumstances …. The local circumstances of Warwickshire which justify a divergence from PPG3 are the need to focus housing and industrial growth on the nine main towns identified in Policy GD3 and the support of this strategy by the EiP Panel Report ….”
On 19 August the Government Office for the West Midlands wrote to inform the Council that the Secretary of State did not propose to intervene. In a subsequent letter to an objector, the Office stated:
“… It is Government policy not to intervene with the jurisdiction of planning authorities unless there are very strong reasons for doing so. Very careful consideration to the plan proposals was afforded at each stage of the proposals leading to adoption and, in spite of concerns which may have been expressed along the way, we were in the end satisfied that there was no justification for intervention on the plan by the Secretary of State.”
WASP was then formally adopted on 20 August 2001.
There are four main issues: (1) whether the modification to policy GD5, in so far as it amounted to a change of policy in relation to existing allocations, was perverse and/or inadequately reasoned; (2) whether the council acted unlawfully, whether by reason of perversity and/or failure to have regard to material considerations or otherwise, in deciding not to hold a new EIP in respect of the proposed modifications; (3) whether the council failed to have regard to material considerations and/or had regard to material considerations and/or failed to provide adequate reasons in relation to the retention of East of Rugby as a broad location in policy GD5; and (4) whether the council failed to comply with its obligation to provide an explanatory memorandum and, if so, the effect that this had on the adequacy of reasons given for the decisions taken with regard to policy GD5.
Those issues do not correspond precisely with the presentation of the claim in the claim form, but represent the way in which it was advanced orally before me by Mr Dove on behalf of the claimants. I am satisfied that I can cover the main arguments if I deal with them in that way.
As I have already mentioned, the claimants also originally alleged a breach of their rights under the European Convention on Human Rights, but that aspect of the challenge was withdrawn pursuant to a consent order prior to the hearing.
Issue (1): Lawfulness of the modification to policy GD5
For the claimants, Mr Dove submits that the modification to policy GD5 radically altered the basis on which the plan had hitherto been prepared. Allocations in local plans had previously been safeguarded as the building blocks of the housing strategy. In support of that, reference is made to parts of the plan and explanatory material relating to the distribution of housing and the housing pipeline: a consistent theme, it is said, is that existing allocations were part of the pipeline and were not affected by policy GD5. The result of the modifications to policy GD5, however, was that existing commitments were no longer safeguarded. They were at best at a third level of priority and they were subject to review against the stated criteria (which they would immediately fail to meet if not adjacent to built-up areas of towns of over 8,000 people). The EIP panel had made a specific recommendation that provision be made within the policy for renewal of existing commitments where they had not been taken up. The council had purported to accept that recommendation. Yet, far from rewriting policy GD5 to provide for the renewal of existing commitments, the council in fact adopted an entirely new approach. It is submitted that such a modification was perverse when set against the council’s explicit acceptance of the recommendation that existing allocations be renewed. Moreover the change of policy and its impact on the housing strategy are not addressed in the reasons. There was a failure to grapple properly with the issues.
For the council, Mr Lowe QC contends that the deposit draft version of WASP, and in particular policy GD5, contained no general policy relating to the treatment of existing allocations. Existing allocations were dealt with only to the extent that they were identified as broad locations for development within policy GD5. It is true that there was an assumption of fact informing the preparation of the plan and its policies, that existing commitments would be brought forward and developed during the period of the plan. That assumption was incorporated in the calculations of the housing pipeline and informed the policies on housing. It was not itself, however, the product of any policy proposed in the plan. In the event the assumption came into conflict with the revised versions of PPG3 and PPG12.
Mr Lowe submits further that the references to existing commitments in chapter 6 of the panel’s report were not to all existing commitments but only to the subset identified as broad locations in policy GD5. The issue being considered in chapter 6 concerned the identification of those broad locations. The references in paragraphs 6.23-6.26 to existing commitments were to be read in that way. So was the recommendation in paragraph 6.27(3) that the policy should provide for the renewal of existing plan commitments where these had not been taken up. The focus was on existing commitments that had previously been dealt with in the context of broad locations. Further, the panel’s recommendation did not exclude existing commitments from review under the criteria-based approach. When read in context it did not extend beyond a recommendation that provision be made for renewal within the context of the criteria-based policy. That is how the council understood the report, there was no misunderstanding on its part and in any event the interpretation of the recommendation was one reasonably open to it. The modification to policy GD5 was in line with the recommendation so interpreted. There was in fact no objection by the claimants to the principle of the modification, only to the need to provide a “context” for the renewal of existing commitments. The council addressed the objections advanced by the claimants and others, including GOWM, and provided a reasoned basis for adhering to the modified policy. The retention of the modified policy was neither perverse nor inadequately reasoned.
I have not thought it necessary to set out the detail of the material on housing distribution and the housing pipeline (including the council's housing technical paper) through which I was taken in the course of argument, nor to refer to certain other and yet more detailed points that were advanced. From the material shown to me, however, I think it clear that sites with existing allocations under local plans but not yet with planning permission were included in the housing pipeline which formed a central part of the council's housing strategy and from which it was expected that local needs would first be met.
The existence of those allocations was assumed in the deposit draft of WASP. In my view it makes little difference for present purposes whether this was an assumption of fact or an aspiration of policy. Technically it was probably the former. But even if it did not contain any policy protection for existing allocations, the deposit draft certainly did not undermine them. The words "beyond existing commitments" in the deposit draft of policy GD5 reflected the fact that such commitments or allocations were taken as a given. The concern of policy GD5 was with the provision to be made in local plans for meeting new housing needs by sites other than those already allocated.
In its examination of the housing distribution aspects of WASP, in chapter 5 of its report, the EIP panel reached the conclusion (para 5.18) that the housing pipeline in Stratford-on-Avon District was so out of scale with local demand that it should be reviewed where possible. It therefore recommended (para 5.20(5)) that "a new policy should be introduced to seek the review of local plan housing allocations in Stratford-on-Avon District", plainly intending thereby to refer to existing allocations without planning permission. The very fact that a recommendation of that kind was made in relation to one and only one specific district evidences an implicit acceptance by the panel of the appropriateness of other existing allocations in local plan policies.
In chapter 6 of its report the panel was concerned with a different question, whether policy GD5 should identify broad locations for development and, if so, whether the locations identified were in line with policy. In that context the panel was not considering the generality of existing allocations. In my view the references in chapter 6, including those in the passages quoted above, to "existing commitments" are to the particular existing commitments or allocations relevant to the broad locations identified in policy GD5, not to existing allocations as a whole. So too the recommendation at paragraph 6.27(3) that "the policy should provide for the renewal of existing plan commitments where these have not been taken up" related not to all existing allocations but to the sub-set of existing allocations included in the broad locations identified in the policy. The council was right so to interpret the recommendation and in any event it was an interpretation reasonably open to it.
But the matter does not end there. Although the recommendation related to a sub-set of existing allocations, it was wholly in line with the earlier implicit acceptance of the renewal of existing commitments with the exception of those in Stratford-on-Avon District. Moreover in neither case was it contemplated by the panel that existing allocations should be subject to review under a criteria-based approach. That is not what the recommendation said nor is it something that can be derived from the context. On the contrary, it was stated earlier in chapter 6 that the renewal of the relevant existing commitments was the subject of little opposition (para 6.25) and that the panel saw "no reason" for WASP to resist their renewal (para 6.27). To read the recommendation at face value, that the policy should provide for the renewal of existing commitments, is consistent with those observations as well as with the earlier implicit acceptance of the renewal of existing commitments.
If, therefore, the council interpreted the panel's report as recommending that existing allocations be subject to review under a criteria-based approach, or if it acted on the basis that to render existing allocations subject to review under a criteria-based approach was consistent with the panel's recommendations, then in my judgment it adopted an erroneous and unreasonable interpretation of the report.
It seems in part to have been such a misinterpretation of the report that led the council to take what on the face of it was a very odd course, namely to accept the panel's recommendation that the policy should provide for the renewal of existing commitments yet at the same time to propose a modified policy that, far from providing for the renewal of existing commitments, made them subject to review on a criteria-based criteria (and with criteria that made it virtually inevitable that some would not be renewed).
But an additional and very important consideration in play, or potentially in play, at the time when the council came to consider the panel's report and recommendations was the new and emerging Government guidance. PPG12, published at the end of 1999, indicated that plan reviews were the opportunity to reassess existing allocations without planning permission, taking account of any revised national policy guidance. The guidance in the emerging PPG3 called for the adoption of a search sequence and criteria-based approach for the identification of sites to be allocated for housing in local plans. The renewal of existing allocations in local plans could therefore no longer simply be assumed.
A draft of PPG3 was available to the EIP panel but does not appear to have played any overt part in the panel's thinking. It is not clear what if any part it played in the thinking of the council in formulating proposed modified policy GD5 (though it is said in evidence that the text took on board the advice of PPG12). The modified policy certainly has a search sequence and a criteria-based approach, but it may be thought to sit uneasily with the details of PPG3. GOWM assumed that the council had not been able to take PPG3 into account in formulating the modified policy and stated that the policy should be reviewed in the light of PPG3. GOWM plainly had substantial reservations about the modified policy although it was decided in the end that there was not a strong enough case to justify intervention by the Secretary of State. The objections on behalf of the first claimant's parent company implicitly recognised the need to modify the policy in the light of PPG3 but complained that the advice in PPG3 had not been taken on board.
Whether or not the modified policy GD5 adequately reflects PPG3, it is striking that the council made no reference at the time to the emerging PPG3 as a justification for the modification. The reasons accompanying the modified policy were silent as to PPG3. They included "to allow for renewal of existing plan commitments" but did not otherwise deal with those existing commitments. No reasons were given for making existing allocations subject to review under a criteria-based approach or for the particular criteria included. There was no examination of the potential effects of such a change on the allocations themselves or on the housing pipeline and housing strategy.
Reasons were, however, subsequently put forward in support of this treatment of existing allocations. In the Director's commentary on GOWM's objections to the proposed modifications, paragraph 3 of modified policy GD5 was described as "the effective expression of paragraphs 30-32 of PPG3 in so far as housing is concerned in the Warwickshire context." In his report to the council's working party it was stated that "even PPG3 brings very little that is new or different to the proposed modifications. In fact, it may be the case that WASP and the EiP Panel's report have shown the way to PPG3." I have already referred to, and quoted from, the explanatory memorandum published just before the adoption of WASP, which sought to explain inter alia how and why policy GD5 diverged from the sequential search in PPG3, a point which is different from, though more accurate than, anything stated previously.
Drawing the various threads together and examining their consequences, my conclusions on this issue can be stated as follows:
i) To the extent that, in proposing the modification to policy GD5 with regard to existing allocations, the council was purporting to give effect to the EIP panel's recommendations or thought that it was acting in accordance with those recommendations, it acted on the basis of a mistaken and unreasonable interpretation of the report.
ii) If it was basing itself on additional considerations arising out of the emerging PPG3, then there was potentially a rational basis for subjecting existing allocations to review under a criteria-based approach. But if it was relying on such additional considerations, it failed to say so at the time. It did not refer to PPG3 or, in so far as it was relying on PPG3, seek to explain or justify the ways in which the modified policy diverged from PPG3.
iii) The council did not give any adequate or intelligible reasons for the proposed modification in so far as it affected existing allocations. It was thereby in breach of its duty under regulations 15 and 17 of the 1999 Regulations to give reasons for the decisions it reached in the light of the panel's report and recommendations and reasons for its proposed modifications. In reaching that conclusion I have taken into account the established principles relating to the giving of reasons, which were not in dispute before me. I was taken, for example, to the discussion of relevant principles in the judgment of Schiemann LJ in Welsh Development Agency v. Carmarthenshire County Council (1999) 80 P&CR 192, a case on the adoption of a local plan, and in the judgment of Ouseley J in South Northamptonshire Council v. Northamptonshire County Council  EWHC Admin 1143, a case on the adoption of a structure plan. I do not think it helpful to set out the principles here, because my finding of a breach of the regulations is not dependent on any subtle application of the principles but on what seems to me to have been a total absence of any sensible explanation for the modification at the time.
iv) A deficiency in the reasons given at the time cannot automatically be remedied by the giving of reasons at a later date, for example in the explanatory memorandum eventually published. The purpose of the requirement that reasons be given at the time is to enable informed representations to be made in respect of the decisions on the panel's recommendations and on the proposed modifications, so that those representations can be taken into account in the final decision-making process.
v) On the other hand, one has to look at the reality of the matter; and in reality a modification was inevitable in the end in order to give effect to the guidance in PPG3. WASP could not proceed on the basis that all existing allocations would be renewed, whether as an assumption of fact or as an aspiration of policy. Existing allocations fell to be reviewed in accordance with a search sequence and criteria-based approach. The question then became one of detail rather than principle: what precisely should WASP lay down by way of sequence and criteria?
vi) All this was plainly recognised at the time by the claimants. They did not object to the modification on the basis that existing allocations ought not to be interfered with at all (nor indeed did they object on the basis of the lack of supporting reasons). The objection most pertinent to this issue was that lodged on behalf of the parent company of the first claimant, on the basis that the modified policy "does not provide a context for the renewal of existing plan commitments where these have not been taken up as per Panel Recommendations 6.27(3) and as now referred to in PPG3". The impact of PPG3 was clearly in mind. (I do not think that anything turns on the fact that the objection was made by consultants acting for the first claimant's parent company rather than for the first claimant itself. In my view it would be highly artificial to hold in this context that representations made by or on behalf of a parent company on a matter affecting the interests of the group could not be relied on by a subsidiary within that group.)
vii) Although the objection referred to the failure to provide a "context" for the renewal of existing plan commitments, the modified policy plainly did provide such a context. The real disagreement was with the details of the context provided. As to that, the reasons subsequently given by the council enable one to see what is relied on by way of justification for the policy and for its divergence from PPG3; and although the policy fits uneasily with PPG3, it cannot in my view be said that the divergence represents an irrational departure from the terms of the guidance or that it was otherwise irrational to adopt a policy in those terms. The views expressed by GOWM and the eventual decision of the Secretary of State not to intervene are in line with that conclusion.
viii) In reaching that conclusion I have also taken into account the tension between the reasons given at different times. For example, at one stage it is said that PPG3 "brings very little that is new or different to the proposed modifications"; whereas the later explanatory memorandum describes PPG3 as reflecting a "radical change in Government policy" and seeks to justify the divergence between the modified policy and PPG3. Those positions are strictly reconcileable in so far as the modifications took the emerging policy into account or anticipated it. More importantly, however, it seems to me that in assessing the reasons for the policy as adopted it is appropriate to focus on the explanatory memorandum issued at the time of adoption (even if it did not meet the statutory requirements relating to explanatory memoranda: see fourth issue).
ix) Given the existence of a rational and sufficiently reasoned basis for the modified policy at the end of the day, I do not think that the original misinterpretation of the panel's report or the lack of adequate reasons at the time of proposing the modification to policy GD5 can justify the quashing of the adopted plan in so far as it relates to the policy.
x) More specifically, under section 287 of the 1990 Act a plan can be quashed on the ground that it is not within the powers conferred by the Act or on the ground that a relevant requirement has not been complied and the interests of the claimants have been substantially prejudiced. In this case, for the reasons given, I take the view that the plan was within the powers conferred by the Act despite the earlier deficiencies. If those earlier deficiencies, particularly as regards reasons, are to be regarded as failures to comply with relevant requirements, then having regard to the absence of an objection on this point and the fact that adequate reasons were subsequently given I am not satisfied that the interests of the claimants have been substantially prejudiced. In any event the point is not one that in my judgment would call for the grant of relief by the court in the exercise of its discretion.
For those reasons the claimants' case on the first issue fails.
Issue (2): Failure to reopen the EIP
Mr Dove submits that the council acted unlawfully in failing to hold another EIP in respect of the proposed modifications. The change of policy, together with the new considerations introduced by PPG3, produced a situation where it was perverse not to hold a new inquiry. There were new issues and new considerations which should have prompted the holding of such an inquiry in accordance with the principles set out in Warren v. Uttlesford District Council  JPL 1130 and Drexfine Holdings Limited v. Cherwell District Council  JPL 361. The failure to hold a further EIP caused substantial unfairness and prejudice to the claimants, not least in relation to the consideration of their planning application in respect of the Long Lawford site. It is likely that if a further EIP had been held a different approach would have been recommended to the council. In any event it cannot be said that the outcome would necessarily have been the same. Further arguments about re-opening the EIP are advanced in the context of the East of Rugby issue, considered below.
Mr Lowe submits that in so far as it was correct or reasonable for the council to conclude that it was implementing the panel's recommendation with regard to the treatment of existing commitments, no further examination of the issues was required; and in so far as the claimants required a context for the renewal of existing commitments, one was provided consistent with the advice of the panel and the framework of other policies. The reasons given for the refusal to reopen the EIP were adequate and the claimants suffer no prejudice from the alleged inadequacy of the reasons given, since a reopening of the inquiry was requested (by consultants for the parent company of the first claimant) only in respect of "fundamental issues" and the concern in relation to existing commitments was only as to the "context" for their renewal. Although PPG3 was a major change in policy, there was no inconsistency between the modified policy or related policies and PPG3: the policies were prepared in the context of the draft PPG and "showed the way" to PPG3, and the differences between modified policy GD5 and PPG3 were minor and are explained.
Section 35B of the 1990 Act confers on an authority a broad discretion with regard to the holding of an EIP. It applies equally to the decision whether to hold an initial EIP and to the decision whether to hold a new EIP in the light of subsequent changes of circumstances. It was held by the Court of Appeal in Warren that a plan is liable to be struck down if the authority, in not arranging for a new EIP, behaved in a manner outside the discretion given to it by the 1990 Act (i.e. if it behaved perversely) or failed to take into account a relevant matter. The essential question was whether by normal judicial review principles the decision not to open a new EIP was an illegal one. In Drexfine Holdings it was held that an authority had failed to have regard to material considerations and had misdirected itself in respect of the relevant policy in determining not to hold a new EIP in respect of a local plan, and the plan was quashed.
My starting point in the present case is that, for the reasons previously given in considering the first issue, the proposed modification to policy GD5 did involve a substantial change of approach in relation to existing allocations. It raised an issue not previously examined. Whether the EIP should be reopened in relation to it was therefore a serious question.
I think it likely that the council's decision not to reopen the EIP was based in part on a misdirection, in that, as explained under the first issue, the council erroneously believed that the proposed modification to policy GD5 with regard to existing allocations represented in substance an implementation of the panel's report rather than a departure from it.
I am satisfied, however, that the council would have reached the same decision in the absence of any such misdirection. I say that for a number of reasons, which refer back to generally to matters covered under the first issue:
i) A modification so as to provide for existing allocations to be subject to review on a criteria-based approach was inevitable in the light of the new PPG3. There could be no sensible dispute over the principle. The appropriateness of the Government policy embodied in PPG3 was not a matter open to debate at this stage.
ii) The objections on behalf of the claimants did not take issue with the principle. The most relevant objection was that on behalf of the first claimant's parent company, which referred only to the failure to provide a "context" for the renewal of existing commitments and requested that modified policy GD5 be redrafted so as to take on board the advice in PPG3. The real disagreement was with the details of the context provided. (It is not clear whether this was one of the "fundamental issues" that was said in the same set of objections to justify the reopening of the EIP; but I do not think that it could properly be described as a fundamental issue.)
iii) Although I have already pointed to the fact that PPG3 played no overt part in the thinking of the EIP panel or in the reasons originally given for the council's proposed modification to policy GD5, at the time when it was considering the objections and the question of reopening the EIP the council plainly considered that the proposed modification was in line with PPG3. For example, in the Director's report dated 14 April 2000 it was said that PPG3 "brings very little that is new or different to the proposed modifications" and that WASP and the panel's report "may … have shown the way to PPG3".
iv) In those circumstances I think it plain the council would not have considered an EIP to be appropriate even if it had correctly understood that the proposed modification was a departure from rather than an implementation of the EIP panel's report. The tenor of the witness statements put in by the council gives further support to that view.
In my judgment it was not unreasonable to decline to reopen the EIP. Again I rely on the fact that the issue was not the principle of review of existing allocations under a criteria-based approach but the details of that approach. The council could reasonably take the view that the question whether the details were sufficiently in line with PPG3 could be determined without recourse to a further EIP and that it did not require further information or advice of the kind that an EIP is intended to provide.
Running through the authorities is the fact that in relation to plans of this kind the authority is "both proposer and judge" (Stirk v. Bridgnorth District Council (1996) 73 P&CR 439 at 444) or "judge and jury" (Drexfine Holdings at 372), with an obligation to deal thoroughly, conscientiously and fairly with objections. The EIP has a particular importance as the one independent element in the process. I have borne that in mind and I recognise that if the EIP had been reopened the panel might have taken a different view on the merits of the modification to policy GD5 and that this in turn might have affected the terms of the policy eventually adopted. Nevertheless the question is whether it was unreasonable in the circumstances for the council to proceed without the benefit of any such input from the panel on this issue; and for the reasons I have given, I do not think that it was.
Mr Lowe referred me to the obiter dicta of Buxton LJ in First Corporate Shipping v. North Somerset Council  EWCA Civ 693, in particular at paras 37-44, as to the caution to be exercised in relation to the quashing of a plan on grounds including a failure to hold a further inquiry. The observations were directed at the particular circumstances of the case before the court and I do not read them as precluding the making, in an appropriate case, of an order to quash a plan or part of a plan for failure to reopen an EIP. Nevertheless they would have required careful consideration had I otherwise been minded to make such an order.
In the event, however, the point does not arise since, for the reasons given, I hold that the decision not to reopen the EIP in relation to existing allocations was not unlawful. The claimants' case on the second issue therefore fails.
Issue (3): East of Rugby
Mr Dove submits that the council failed to grapple with the reasons for the panel’s recommendation as to the deletion of East of Rugby as a broad location or to provide adequate reasons to explain their retention of East of Rugby in the face of that recommendation. The reasons provided are inconsistent and incoherent. The panel had pointed to the need for adequate and cogent evidence to justify the inclusion of East of Rugby, the requirement to establish a need in strategic terms for its inclusion, and a concern that identifying locations in the strategic plan would stifle or prevent debate when the locations were tested through the local planning process. None of those matters, it is submitted, was addressed by the council. Further, the council failed to have any regard to the conclusion of another EIP panel on the Northamptonshire County Structure Plan, which had been unpersuaded that the Northamptonshire portion of the aerial site qualified as previously developed land within the terms of Annex C to PPG3. The council’s conclusion that the aerial site was a previously developed site within the terms of the policy advice was untenable on the facts. A further problem lay in the fact that the arguments in support of the identification of East of Rugby centred on the status of the aerial site as a brownfield location, whereas the area included within the modified policy was not limited to the aerial site and indeed the explanatory material refers at one point to “East of Rugby (NB not the aerial site itself)”.
Mr Lowe points to the fact that the panel's conclusion with regard to East of Rugby was a provisional conclusion based on the limited information then available. Further material then arose in the form of a letter dated 12 November 1999 from King Sturge & Co, chartered surveyors, giving details about the potential development of the aerial site. The council's working party considered this new evidence and gave adequate reasons for concluding in the light of it that East of Rugby should be retained as a broad location in policy GD5. The conclusion was rational and relevant considerations were taken into account. Objections to the inclusion of East of Rugby were raised only by Rugby Borough Council. Those objections were properly considered. The council did not have knowledge of, and was therefore not required to take into consideration, the views of the Northamptonshire EIP panel in relation to the Northamptonshire part of the site. The inclusion of East of Rugby and not just the aerial site was a matter of judgment for the council: this was a broad location and the precise limits of any area for development would be a matter for the local plan.
For the purpose of evaluating those submissions it is necessary to look more fully at certain aspects of the factual history. I have already quoted from the relevant parts of the report of the EIP panel, which in my view support Mr Dove's submission that the EIP panel's objection to the inclusion of East of Rugby had a number of strands to it, including the absence of an established need in strategic terms for its inclusion and a concern that identifying locations in the strategic plan would stifle or prevent debate when the locations were tested through the local planning process. I have not, however, looked in detail at what followed.
In the reasons given at the time for the proposed modification to policy GD5, the council stated:
“… It is apparent from their report and from the sessions at the EiP, that the principle [sic] reasons for not supporting East of Rugby were the uncertainty about the future of BT's operations on the site, the viability of any proposed development and the extent to which the aerials site could be considered as 'brownfield'.
Since the EiP the situation has changed and new supporting information has become available. This information overcomes the Panel's substantive reservations in respect to this location. It demonstrates that the aerials site will come forward well within the Plan period, that it is viable and that the area could only be considered as recycled, brownfield land. This information does not raise any new issues but provides strong justification for the continued identification of East of Rugby as a broad location.
Because it is clear that the aerials site will come forward it would be imprudent for the Plan not to address the issue. In the absence of a specific policy directing development, applications on the aerials site would have to be treated as departures to the Plan, in effect, as windfalls. This would clearly create uncertainty in the planning system and leave a major strategic location open the vagaries of the call in and appeal processes. Bearing in mind the potential scale of the development, this could have serious implications for the distribution of development across the County ….”
The new information referred to was King Sturge's letter dated 12 November 1999 giving information about the development viability of the aerial site. According to that letter, the phased development of the site was projected to take 20-25 years. But it was necessary that a sufficient scale of development was allocated to the site, so as to avoid piecemeal development and a lack of a co-ordinated and comprehensive approach with regard to infrastructure. For example, the provision of public transport required a critical mass of development so as to fund it. The letter went on to give site details, which included information as to the number of masts, stays, concrete foundations etc. and the gross floor area of the various buildings (11,645 square metres, plus significant areas for servicing and car parking). The view was expressed that the site fell squarely within the definition of what was then Annex B of draft PPG3, which became, with immaterial amendments, Annex C of the final PPG3. Annex C reads:
“Previously-developed land is that which is or was occupied by a permanent structure (excluding agricultural or forestry buildings) and associated fixed surface infrastructure. The definition covers the curtilage of the development ….
The definition excludes land and buildings that are currently in use for agricultural and forestry purposes ….”
The objection advanced on behalf of the second claimant to the proposed modification took issue with whether the information substantiated the points on the availability and brownfield status and stated that it "most importantly, does not override the Panel's principle [sic] concern that this, along with other locations, should be properly tested through the plan process." The objections by Rugby Borough Council were to similar effect.
In the subsequent report dated 14 April 2000, in which the various objections were considered, the comments repeated and did not add materially to the reasons given at the time of the proposed modifications.
In the report of the working party for the meeting of the Cabinet on 25 May 2000, further reference was made to those matters and it was stated (in para 2.4):
“In our view, identification of 'East of Rugby' (NB not the Aerials Site itself) in GD5 will have the effect of ensuring that, in preparing its local plan review, the Borough Council will, after exhausting the capacity for new housing and industrial development within the build-up area of the town of Rugby, need to look at 'East of Rugby' before considering greenfield locations to the north and south of the town and Green Belt locations to the west ….”
The only further document to which it is necessary to refer at this point is the explanatory memorandum, which stated on this issue (para 2.5.14):
“… The definition of development sites at 'East of Rugby', if any, should be considered in the process of reviewing the Rugby Borough Local Plan in the search for land to allocate to meet development needs, only after lands within the built-up area of the town has been subject to an exhaustive search but before considering land to the north and south of the town or Green Belt locations to the west of the town. At each stage in the process, brownfield land should be given priority to greenfield land. It will be a matter for the Borough Council in their review of the Borough Local Plan to assess and take into account local site constraints on development in determining the nature, design, extent and timing of development within the framework of WASP policies. WASP does not make development in the 'East of Rugby' location mandatory on the Borough Council. For example, if convincing evidence were available in the context of the Review of the Borough Local Plan to the effect that the scale of the development was insufficient to support the infrastructure requirement, this could justify looking to make the provision elsewhere on the edge of the town.”
Having considered that history and the rival submissions based upon it, I have reached the conclusion that the council's retention of East of Rugby in policy GD5 in the face of the EIP panel's recommendation that it be deleted was unsatisfactory but not unlawful. It was unsatisfactory in that the information upon which the decision was based was thin and, having regard to the strength of the views expressed by the EIP panel itself, I doubt whether it would have been sufficient to cause the panel itself to alter its recommendation that East of Rugby be deleted. The decision on this, however, was a matter for the council. The panel's objection to the inclusion of broad locations was not an absolute one (it approved the inclusion of two such locations on the basis that a specific need had been demonstrated), but one based on the absence of sufficiently strong evidence to establish a need and to override the concern about stifling the local plan process. Thus it was a matter of judgment whether the additional information was sufficient to establish a such a need and to override such a concern. And inherent in that judgment were specific issues of planning judgment e.g. as to whether the site was previously-developed land within Annex C to PPG3. In my view the council's conclusion that the site was available, that development was viable and that the site was brownfield was a conclusion reasonably open to it on the information before it. Further, as regards need, the council was entitled to attach weight to the strategic importance of a site of this size and to the uncertainty that would be created if it were not covered by WASP. In the light of those matters it was entitled to conclude that the further information established a sufficient case for the retention of East of Rugby notwithstanding the panel's recommendation.
Nor do I think that the council's reasons were so deficient as to amount to a breach of the duty to give reasons. It is true that the reasons given initially in support of the proposed modifications referred in part to matters not appearing in the panel's report (but they also mentioned what was said in the EIP sessions as underlying the panel's view that the case for inclusion had not been demonstrated). It is also true that they did not focus in terms on the question of need and the concern about stifling the local plan process. But it is plain that the issue being addressed was whether there was now sufficient information to establish a need and to override that concern. In my view enough was said to enable those concerned to understand why it was that the council had decided to retain East of Rugby despite the panel's recommendation and the matters underlying that recommendation.
I have referred to the reasons initially given because I do not think that what was said later added materially to those reasons. The observations made in the Director's report on the objections raised amounted to no more than a restatement of the reasons already given; but in the circumstances, given the very broad nature of the objections, I do not think that any more elaborate reasons than those already given were required. The explanatory memorandum did not alter the reasoning in any material respect. In stating that the inclusion of East of Rugby in policy GD5 did not render development in that area mandatory for the borough council, it reflected the statutory position as regards the discretion of the borough council in reviewing the local plan.
I am satisfied that the broad location of "East of Rugby" was intended to include the aerial site but was not limited to that site. That was all that was meant by the remark "(NB not the Aerials Site itself)" in the report of the working party to which I have already referred. On the other hand, the justification advanced for inclusion of that broad location related only to the aerial site. I do not know how great an area apart from the aerial site was included or could sensibly be taken to have been included or what were the characteristics of that area. However, no objection was advanced in relation to the inclusion of that wider area and I am not persuaded on the material before me that its inclusion rendered the policy unlawful.
The views of the Northamptonshire EIP panel were of some potential importance. The point here is that the aerial site straddles the two counties, though the greater part of it lies in Warwickshire. The Northamptonshire panel was "far from convinced" that all the land on the Northamptonshire side qualified as previously-developed land within Annex C to PPG3, especially having regard to the agricultural grazing of the land, and the panel believed in any event that "the wider implications of development of this huge site, which straddles the regional boundary, should preferably be the subject of regional guidance before any further identification for development in a structure plan policy". If that report had been drawn to the attention of the council at the material time, then in my judgment it would have been necessary for the council to take it into account and to address it, both because it tended towards a different view as to the status of the site as previously-developed land and because of the point made about the wider implications of the development of the huge site. On the evidence before me, however, there is nothing to show that it was drawn to the council's attention at the material time. I reject the submission that the council ought to have made its own inquiries of the Northamptonshire position. I am reinforced in that view by the fact that Northamptonshire County Council itself had sent the council a letter dated 22 March 2000 stating in terms that it had no comments to make upon the proposed modifications.
Finally, to deal with another aspect of the challenge in relation to East of Rugby, I should record my view that the issue did not require the reopening of the EIP. Paragraph 60 of the Code of Practice states that the reopening of an EIP is not normally necessary where, as here, there are objections to the authority's decision not to accept a recommendation in the panel's report. In this case the new information did not give rise to a new issue calling so obviously for further consideration by the panel as to render it unreasonable not to reopen the EIP.
For those reasons the claimants' case on the third issue also fails.
Issue (4): Failure to provide an explanatory memorandum
Mr Dove submits that there was a failure to provide the explanatory memorandum required by statute. There was no reasoned justification for or explanation of the policies as they emerged and changed during the process. The document produced at the end of the process, though referred to as an explanatory memorandum, has no standing and has not been through any public consultative process. In any event it bolsters the claimants’ case in that it highlights the indefensible nature of reasoning advanced earlier.
The submission is not one that I think it necessary to deal with in any detail. It is advanced not as an independent ground for quashing the material parts of the plan, but as part and parcel of the argument that the council failed to provide adequate reasons for the proposed modifications.
The statute does not prescribe the form of the explanatory memorandum. The EIP panel took it to be the explanatory text accompanying the policies (which referred in turn to three technical papers including the housing technical paper) together with the explanatory video. It made the broad recommendation that the form and content of WASP be reviewed in order to provide an adequate reasoned justification for the policies and proposals. It also made a number of specific criticisms about the want of reasoning in relation to individual policies. The council accepted the recommendation and dealt with it by publishing a much fuller explanatory memorandum at about the time of adoption of WASP.
In my judgment the requirement under s.32(5) and (6) of the 1990 Act is for an explanatory memorandum to be published at the time of the proposals ("shall be accompanied by") rather than at a later date. A document published at the time of adoption of the proposals is too late to fulfil the statutory requirement.
On the other hand, the fact that the statute does not prescribe the form or content of the explanatory memorandum means that there is a very large grey area. In this case there was some material that could be taken to be the explanatory memorandum: the EIP panel so dealt with it. It was plainly unsatisfactory, as the panel made clear. But I doubt whether it was so unsatisfactory as not to amount to an explanatory memorandum at all or otherwise to give rise to a breach of duty with regard to the provision of an explanatory memorandum. In any event the claimants did not raise any objection at the time on the basis that there was no, or no adequate, explanatory memorandum and, even if what was provided was insufficient to amount to a lawful explanatory memorandum, that cannot be said to have caused substantial prejudice to the claimants. So far as concerns subsequent modifications, I have dealt already with the adequacy of the reasons given and have held that any deficiencies were not such as to justify the quashing of the plan. I therefore find that the claimants' case is not materially advanced by reference to the explanatory memorandum issue.
The claim fails on all grounds and must be dismissed.
MR JUSTICE RICHARDS: I am handing down judgment in this case. For the reasons given in that judgment, the claim is dismissed.PRIVATE
MR GREEN: My Lord, with that result, the defendant, Warwickshire County Council, seeks its costs. My learned friend has some observations about the matter.
MR YOUNG: I do, my Lord. I appear on behalf of Bloor Homes. The position is that I invite your Lordship to make a detailed -- to have the costs referred to a detailed assessment but invite your Lordship to make certain rulings on the principle of costs in relation to this case. It is a statutory appeal but nevertheless it was issued under Part 8 of the CPR and I invite your Lordship to be guided by the principles in the CPR at Part 44. Does your Lordship have a copy of the statute to hand?
MR JUSTICE RICHARDS: I do not, but I am pretty familiar with the principles.
MR YOUNG: May I pass up a page, which highlights the point? (Handed)
MR JUSTICE RICHARDS: Thank you.
MR YOUNG: I will be very brief because your Lordship has indicated you are familiar with these various points, but it is in relation to the general principles as to costs in proceedings. Part 44.5(3)(a). Amongst the matters that you are invited to consider and must have regard to is:
"(a) the conduct of the parties, including in particular--
(i) [and this is what I emphasise] the conduct before, as well as during, the proceedings... "
Therefore, I invite your Lordship to consider the conduct of the statutory authority during their adoption of procedure, which is obviously the subject matter of your judgment.
MR JUSTICE RICHARDS: Yes, the conduct that I have held to be lawful.
THE PROSECUTION: In a sense you are absolutely right, your Lordship. There are various pointed criticisms that are made in your judgment of Warwickshire's process of adoption and in particular the inadequacy or unintelligibility of the reasons for not adopting certain recommendations in the EIP panel report; also the unreasonable interpretation of that report and the failure in relation to addressing PPG3.
My submission is made on two alternative bases. My principal submission is that the correct order in this case should be no order as to costs, simply for this reason: the defendants have very much brought this litigation entirely upon themselves, for the procedures, the interpretation and the reasoning which they performed in pursuit of their statutory duties. On that point I will, with your Lordship's permission, go to the specific criticisms in the specific paragraphs but, in making that general application, it is for all of those specific criticisms. In the alternative, if you are against me on that, it is an application in respect of three issues that came before the court, helpfully set out as three issues with titles in your Lordship's judgment, and those issues are the lawfulness of the modification of policy GE5, the first issue. Not the second. Third, the East Rugby issue -- forgive me, the second point but the third issue, East Rugby, and, thirdly, the fourth main issue, the failure to provide an explanatory memorandum to accompany those points.
Of course, I make that application subject to your Lordship's overriding discretion in all these matters, and on that second part of the application, it is an application that in fact the defendants pay the claimant's costs, or in the alternative there be no order for costs on those three specific issues.
MR JUSTICE RICHARDS: You are actually making an application that the defendant pay your costs?
THE PROSECUTION: I am instructed to that effect.
MR JUSTICE RICHARDS: Yes, I see.
MR YOUNG: Because they brought it on themselves and it was an inevitable and irresistible conclusion that my clients would be led down this path of seeking to challenge that -- I appreciate your Lordship may not be with me on that point and therefore it is an order for no order for costs on those three issues.
In paragraphs -- if I may very briefly and I hope not impertinently take your Lordship to those parts of your Lordship's judgment which just highlight the points. First of all, on the lawfulness of the modification of policy GD5, paragraph 52, in which your Lordship makes plain that:
"If, therefore, the council interpreted the panel's report as recommending that existing allocations be subject to review under a criteria-based approach, or if it acted on the basis ... "
The criticism that your Lordship makes is that in your judgment it adopted an erroneous and unreasonable interpretation of the report and that, out of all of these submissions, inevitably led my clients, whose interests inevitably lay in the whole process and the outcome of the process -- irresistibly led them to need to challenge or seek to challenge the whole process.
Paragraph 53, in which it seems, developing the point, your Lordship said:
"It seems in part to have been such a misinterpretation of the report that led the council to take what on the face of it was a very odd course ... "
Inevitably, the same points again as to the position in which my clients find themselves.
"Whether or not the modified policy GD5 adequately reflects PPG3, it is striking that the council made no reference at the time ... "
Your Lordship will know that there is no more important document in contemporary English planning than PPG3, described by the Government itself as a radical change in policy, published in March 2000, and your Lordship's observation that it is striking that such a document was not dealt with by the county council is in my respectful submission most telling.
Finally, on the lawfulness of the modification, at paragraph 58, where your Lordship concludes on the matter, at subparagraph 1 you say:
"To the extent that [in relation to those issues the county council] acted on the basis of a mistaken and unreasonable interpretation of the report."
That matter above all, in my respectful submission, inevitably and irresistibly led Bloor Homes to seek to challenge the county council's procedures, even though ultimately your Lordship found that they were not -- even though unreasonable in the process -- unlawful in the end.
Under the third subparagraph the council did not give any adequate or intelligible reasons for the proposed modification, insofar as it affected the existing allocations. The planning systems of course require in his review before this court, precisely that -- adequate and intelligible reasons -- and they were not provided, and your Lordship so found. I accept --
MR JUSTICE RICHARDS: But of course, at the end of the day I said, looking at it as a whole, you had reasons. They were adequate, intelligible and provided the rational basis for the decision.
MR YOUNG: Your Lordship is well ahead of me. My final point was simply to take your Lordship to subparagraph 5, where, if I may descend to the vernacular, to a certain extent they stumbled across the right issue in the end, but the process in which my clients went through -- and perhaps that is a backdrop for all of this submission -- is of course the disclosure and dissemination of this information is entirely at the will of the county council. Your Lordship, I know, was taken through a vast amount of this information during the case, an enormous and complicated process of committees and subcommittees and full committees and resolutions and so on. The point that is most telling about the process, and why the criticism is not a hollow criticism, even if the end result is no different, is that my clients receive the information as and when the county council choose to provide if, when they choose to release that information, and in this case your Lordship will have a far better idea than I have, appearing before you for the judgment, as to the extent to which the county council chose when to release certain information, such as the objection from the government office of the West Midlands. So they controlled the process and if information comes to light and we would like to apply a sticking plaster to problems earlier, then Bloor Homes are substantially disadvantaged. I accept entirely of course your Lordship found against the criticism in the main.
On the second issue there were no points arising as to costs.
Briefly, very briefly on the third point, the East Rugby point, paragraph 79, if I may take your Lordship just very briefly to that, where you say:
"Having considered that history and the rival submissions based upon it, I have reached the conclusion that the council's retention of East Rugby in policy GD5 in the face of the EIP panel's recommendation that it be deleted was unsatisfactory but not unlawful."
The same criticism again. Your Lordship did not find in favour of my clients, did not find it unlawful, but nevertheless the whole approach of the county council, to be stated in judgment by the court to be unsatisfactory, inevitably led them to protect their substantial financial interests by virtue of this appeal. I am reminded myself, of course the factors to be taken into account in the CPR part 44.5(3), including:
"(b) the amount or value of any money or property involved; [and]
(c) the importance of the matter to all the parties."
Your Lordship will be familiar with it. It was a substantial housing development and therefore particularly and perfectly important to Bloor Homes and inevitably led them to raise this challenge.
Finally and very briefly on the fourth issue: failure to provide explanatory memorandum, paragraph 89. Now this is, if I may say so, saved for the defendants on the issue by the fact that it is undoubtedly and widely known to be a very grey area, as your Lordship quite correctly records, but in my submission that effective sticking plaster, which saves the county council on that issue, does not adequately deal with the criticism that my clients would inevitably seek the appeal, for the criticism made in paragraph 89. The very large grey area is the point your Lordship made in paragraph 90 and the criticism, in my judgment -- the requirement of the statute is for an explanatory memorandum to be published at the time of the proposals -- your Lordship is very clear on that point -- rather than at the later date. If it has not been published at the time of the document, the proposal is too late to fulfil the statutory requirements and, even though it is a grey area, they did not do that which your Lordship felt they should, even though they were saved by the grey area.
So, in my respectful submission, those are the bases upon which, even if you are against me on the general principle of costs, the other submissions are made. Unless I can assist your Lordship further --
MR JUSTICE RICHARDS: Thank you very much.
In this case the claimants have lost on all grounds. The defendant seeks an order for costs. The claimants, however, submit that they should get an order for costs in their favour; alternatively that there should be no order for costs. In considering the submissions advanced on behalf of the claimants and the order to be made, I have regard to the principles laid down in CPR Part 44 and of course the overriding objective in Part 1.
In essence, the basis upon which the claimants advance their contentions is that the defendant council brought the litigation upon itself by reason of the deficiencies in its procedures and reasoning. My attention has been drawn to specific deficiencies, to which I referred in the course of my judgment. There were undoubtedly such deficiencies. None of them, however, was held by me to amount to a sufficient ground for a substantive challenge.
In reaching that conclusion, I also took into account the extent to which objections were made by or on behalf of the claimants at the time and the way in which the issues raised by the various objections were dealt with by the defendant. I held that, at the end of the day, the adoption of the plan was lawful and that any failure to comply with procedural requirements should not lead to the quashing of the plan. The claimants chose to challenge the adoption of the plan. At the end of the day, in the light of all the material that I was able to take into account in reaching my judgment, they lost on all grounds.
Looking at the circumstances as a whole, I do not think that justice calls for any other order than that the claimants pay the defendant's costs. It would not be right to depart from the normal rule that the unsuccessful party pays the costs of the successful party. I will therefore order that the claimants pay the defendant's costs, to be subject to detailed assessment, if not agreed.
MR YOUNG: Your Lordship, I am instructed to seek leave to appeal. I have spoken to Mr Dove, who appeared before you, and we seek leave to appeal on the general principle that your Lordship erred in judgment.
MR JUSTICE RICHARDS: I see.
MR YOUNG: I apologise for not being able to --
MR JUSTICE RICHARDS: I understand the difficulties in your substituting for Mr Dove in the matter. I had thought that there might be such an application. I have considered the correct approach in relation to it and I have decided to refuse permission to appeal. I do so on the basis that the case gives rise to no issue of general importance. It depends on the assessment I have made of the factual evidence, with a few points of discretion included. I do not think that there is any real prospect of success on an appeal, and in those circumstances it would be wrong to grant permission. You will have to go to the Court of Appeal to seek permission, if you want to take it further.
MR GREEN: I am obliged, my Lord.
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