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||Neutral Citation Number:  EWHC 262 (Admin)
||Case No: CO/248/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||19 February 2008
B e f o r e :
SIR GEORGE NEWMAN
|| THE QUEEN on the application of HOWSMOOR DEVELOPMENTS LIMITED AND OTHERS
||- and -
||SOUTH GLOUCESTERSHIRE COUNCIL
Timothy Corner QC and Justine Thornton (instructed by Eversheds LLP) for the Claimants
Richard Drabble QC and David Forsdick (instructed by Andrew Griffiths, Group Manager & Solicitor, Legal & Democratic Services, South Gloucestershire Council) for the Defendant
Hearing dates: 25th October 2007 and 17th & 18th January 2008
HTML VERSION OF JUDGMENT
Crown Copyright ©
Sir George Newman :
- On 30th October 2006 South Gloucestershire Council ("the Council") decided to adopt the Emersons Green East Development Brief ("the Brief") in relation to the site known as Emersons Green East (where convenient referred to as "the site"). The Claimants seek an order quashing the Council's decision. On 25th October 2007 the matter came before me as a two-day application for permission. I adjourned the hearing and directed that the matter should be dealt with, as a rolled-up application for permission and the substantive hearing, on 17th and 18th January 2008.
Emersons Green East
- The site is a 177 hectare site located in the north-east of the Greater Bristol built up area, which will act as an urban extension to the built up area. The site is bounded by the M4 motorway to the north, the Avon Ring Road dual carriageway to the south-west, Westerleigh Road to the north-west and the line of the dismantled Mangotsfield-Westerleigh railway to the south-east. It is part of the 400 hectare Emersons Green Development Area, identified in 1985 for development by the planning authorities in the area, the balance of which has now largely been developed. The development at the site represents the final stage of an important strategic development in the south-east and is a key proposal of the development plan for the South Gloucestershire area. The site has been allocated for development at both Structure Plan level and at a Local Plan level. The development, a major mixed development, has been long-established as a planning policy for the area and this status has been reaffirmed at both Structure and Local Plan levels. The Claimants own substantial areas on the site. In particular, Howsmoor Developments Limited and Keelbold Limited own the area known as the Gateway site which is in an area of approximately 13 hectares of former agricultural land. The present planning aim is to develop most of the housing at the site by 2011 in order to meet the agreed forecast needs for new housing in the area.
The Planning History
3. (1) In 1985 the Avon County Structure Plan identified the Emersons Green development area as a major mixed development.
(2) The Avon County Structure Plan was replaced by a Joint Replacement Structure Plan which was formally adopted on 23rd September 2002. The Joint Replacement Structure Plan identified Emersons Green as one of the key strategic areas for development in the locality and policy 13 of the Plan earmarked the site as a major residential-led mixed use development.
(3) In January 2006 the South Gloucestershire Local Plan ("the Local Plan") was adopted. It developed the policies and proposals set out in the Structure Plan.
(4) The Local Plan was subject to a public inquiry into objections between June 2003 and September 2004. The Inspector heard the inquiry and published his report in December 2004.
(5) Policy M2 of the Local Plan provided detail on development proposed for the site, including the different uses of the site, the approximate size of the area allocated for each use and for transport around the site. Policy M2 is a strategic allocation to meet forecast housing needs in the area. The Plan also made provision for the development of a supplementary planning document for the site, referred to as the Brief. The Brief is now under challenge in these proceedings.
Development Policies Relevant to Emersons Green East
- The development plan for the site falls within the transitional arrangements introduced under the Planning and Compulsory Purchase Act 2004 ("the 2004 Act"). The policies are contained in three documents:
(1) The Regional Spatial Strategy for the region, currently RPG10 Regional Planning Guidance for the South West (2001);
(2) The adopted Structure Plan, namely the Joint Replacement Structure Plan for Bath and North East Somerset, Bristol, North Somerset and South Gloucester (2002);
(3) The adopted Local Plan, namely South Gloucestershire Local Plan (2006).
- It is common ground that these documents provide the statutory basis for determining planning applications (unless material considerations indicate otherwise). It is also common ground that the Emersons Green East Development Brief is a supplemental planning document and is not part of the development plan. It is, however, a material consideration in any relevant planning application. It has a recognised role in planning decisions on major schemes, especially where the development plan recognises the need for a supplementary planning document (see para 8.46 Local Plan). It is required to be subject to "rigorous procedures of community involvement" (PPS 12 para 2.42). All necessary procedures were followed in connection with the Brief.
- The Council concluded that the policy set out in the development plan permitted it to set out in the Development Brief a framework plan and text which shows (i) a multi-modal interchange (MMI) in Emersons Green East and (ii) a bridge and their indicative location within Emersons Green East. The Claimants submit that the Council went further.
- The Claimants maintain that the Brief has allocated a location for the MMI and the pedestrian bridge and that, in so doing, an allocation of land in a supplemental planning document has taken place contrary to Regulation 7 of the Local Development Regulations. It is agreed that if an allocation for the MMI and the pedestrian bridge was made by the supplemental planning document it would be contrary to Regulation 7 as well as government policy.
- The Claimants also maintain that the strategic environmental assessment ("SEA") contained within the Sustainability Appraisal ("SA") in the Brief does not comply with Regulations 8 and 12 of the SEA Regulations. Further, that it fails to comply with government guidance on the SA and SEA (see, in particular, paragraph 4.1.6). It is to be noted that, whilst the Local Plan falls within the transitional provisions of the 2004 Act, the Brief as a supplemental planning document is governed by the provisions of the 2004 Act. As a result, the Claimants also maintain that if there was an allocation in the Brief it was not only contrary to principle but that the allocation has taken place without the SEA Regulations being complied with. But they also submit that even if no allocation has taken place then there has been a failure to comply with the SEA Regulations and the Directive (Directive 2001-42-EC on the Assessment of the Effects of Certain Plans and Programmes on the Environment).
- Despite the range and length of the Claimants' arguments, I am satisfied that this case falls for determination upon two relatively narrow points. The first is whether the Council's interpretation of the development plan policies fell within a range of reasonable interpretations of the development plan. Unless the Council's interpretation was perverse it cannot be the subject of a successful challenge in this court (see R v Derbyshire County Council ex parte Woods  JPL 998). Secondly, whether, having regard to the terms of Article 5 of the Directive and the stage of the planning process at which the Development Brief was drawn up and adopted, the steps taken in the Development Brief to comply with the SEA Directive were sufficient.
Was There An Allocation In The Development Brief?
- It is clear that the link between development and sustainable transport infrastructures has been a key strategic theme. This can be seen from the Regional Planning Guidance for the South West (RPG10) September 2001 and Policy 1 of the Structure Plan which included a guiding principle that development within the area would provide for "ease of movement of people within urban areas by means other than a car". Policy 2 providing for the locational strategy to be adopted in the Structure Plan, at (b), specifically refers to "the provision of effective interchanges." As to this, there is no dispute. The Claimants do not suggest that the development plans for the site have not proceeded upon the basis that there would be an MMI and pedestrian bridge within the development area known as Emersons Green. The dispute is whether the policies as set out in the relevant development plan allocated Emersons Green East as the location for the MMI and the pedestrian bridge. The significance of "the allocation", if it has lawfully occurred, is that an MMI and pedestrian bridge in the Emersons Green East development area will have a significant impact on the Claimants' development proposals, in particular for the Gateway site.
- The Structure Plan dealt with the Emersons Green area, namely the development to the east and to the west of the Ring Road. Policy 13 referred to Emersons Green East stating that provision will be made for:
"… a major mixed use of development comprising a science park, other business and industrial uses to meet local employment needs and residential development with associated facilities integrated into the wider Emersons Green residential development west of the Ring Road. The development will be planned on a comprehensive basis to integrate the different land uses and to maximise provision for public transport, walking and cycling."
Policy 13 also provided that there should be a "convenient public transport system within and to the Emersons Green developments by ensuring, inter alia, "[a] reduction in the physical barrier created by the Avon Ring Road between the Emersons Green developments by providing safe and easy access across the road at convenient points for buses and pedestrian and cycle movements". It is submitted by the Claimants that in these parts of the Structure Plan the planning policies are being advanced by reference to the wider Emersons Green development and not by reference to Emersons Green East in particular. The Council submit that, upon a proper interpretation of Policy 13, the "integrated policy approach towards transport and development …" was to be implemented in Emersons Green East.
The Local Plan
- Paragraph 2.1(a) to the Local Plan summarises the key elements of the locational strategy which included at (d) "to realise the economic development potential of the key strategic locations at Severnside and Emersons Green" and (at para 2.16-2.19) focused on development occurring alongside "substantial improvements in public transport services …".
- Emersons Green is referred to in paragraph 2.26 as follows:
"Similarly, on the north eastern fringes of Bristol the strategy continues to acknowledge the potential for land at Emersons Green to accommodate science based industries which compliment existing activities and companies in the Bristol North Fringe. However, as with the northern fringe, the emphasis lies with creating a more "balanced" pattern of development which encourages higher levels of residential development and the introduction of local facilities and enhanced public transport, cycling and walking measures, which should achieve more 'self sufficiency' than hitherto".
The acknowledgement of the development of "science based industries" is in conformity with Policy 13 (see previous paragraphs).
- The multi-modal interchange strategy is specifically considered in Policy T5 of the Local Plan:
"T5 PROPOSALS FOR MULTI-MODAL INTERCHANGE SITES (PARK AND RIDE/PARK AND SHARE/KISS AND RIDE) WILL BE PERMITTED PROVIDED THAT EACH PROPOSAL:
A. ENCOURAGES MODAL TRANSFER FROM AND A REDUCTION IN THE USE OF THE PRIVATE CAR; AND
B. ENCOURAGES THE USE OF PUBLIC TRANSPORT FOR LONGER JOURNEYS;
E. PROVIDES ACCESS TO AND FACILITIES FOR WALKERS, PEOPLE WITH DISABILITIES, MOTORCYCLISTS AND CYCLISTS; AND
F. COMPLEMENTS AND CONTRIBUTES TO THE MULTI-MODAL INTERCHANGE STRATEGY AND TO OTHER EXISTING OR PROPOSED PUBLIC TRANSPORT SERVICES; AND
- The notes to the Policy are set out in paragraph 6.69 to 6.80 inclusive. Paragraph 6.69 states in a material part:-
"A major part of the Council's Transport Strategy is the implementation of the Multi-modal Interchange Strategy. This consists of a series of sites, which will cater for the interchange between different types of transport, for example bus, car, cycle, pedestrians and taxis. In general these sites will be relatively close to the home locations of transport users and sited along key public transport corridors, serving both employment areas of South Gloucestershire and Bristol City….".
- Paragraph 6.72 provides:
"The initial phased implementation programme for the strategy consists of:
- A Multi-modal Interchange site within the Emersons Green development, to be implemented by 2007/08;
- A Multi-modal Interchange site at Parkway North, to be opened by 2006/07; and
Paragraph 6.74 provides:
- A Multi-modal Interchange site at Cribbs Causeway, to be opened in 2007/8."
"Specific sites for the Emersons Green and Yate area multi-modal interchange facilities are currently being investigated and therefore it is not possible at this stage to include the sites on the Proposals Map….".
Thus the Proposals Map does not show a precise location for an MMI. However, Figure 6.3 headed, "Illustration of Multi-Modal Interchange Strategy", which follows paragraph 6.75, does show an area of search for an MMI at Emersons Green East. It is beyond argument that from the Figure the MMI for Emersons Green is located in Emersons Green East. To this the Claimants reply that this part of the Local Plan is permissive and does not lay down a requirement. There is an element of common ground between the Claimants and the Council on this. The Council does not maintain that the siting of the MMI in Emersons Green East on the proposals map is a specific site allocation for the MMI in Emersons Green East. The Council's case is that, on a proper reading of the Local Plan, the Local Plan has allocated the MMI to Emersons Green East but subject to the specific site being decided according to development proposals, at a later date. In this regard, the Council relies upon paragraph 6.74 which states that specific sites are currently being investigated.
Paragraph 6.77 states:
"Policy T5 will be used to assess both proposals coming forward which are part of the South Gloucestershire Multi-modal Interchange Strategy, as well as those not forming part of the Council's Strategy."
Policy M2 of the Local Plan
"Policy M2 is expressed to relate to a major mixed use development proposal:
"ON 177HA OF LAND AT EMERSONS GREEN, EAST OF THE A4174 AVON RING ROAD, AS DEFINED ON THE PROPOSALS MAP. THE PROPOSAL WILL COMPRISE: …"
Paragraphs A. to E. inclusive of Policy M2 comprise specific allocations of hectares to various uses to which the development relates.
"THE REMAINDER OF THE SITE TO BE USED FOR THE PROVISION OF A RANGE OF LOCAL FACILITIES INCLUDING LOCAL SHOPPING, HEALTH CARE, PRIMARY EDUCATION AND OTHER COMMUNITY FACILITIES, FORMAL AND INFORMAL OPEN SPACE, NATURE CONSERVATION AREAS, BALANCING PONDS AND ROADS.
It seems clear enough that paragraph F. of M2 is referring to Emersons Green East and to the need for a network of linking connections between Emersons Green East and, for example, the District Centre to the west of the Ring Road. Paragraph 8.96, being part of the notes or the supporting text to the Policy, states:
DEVELOPMENT WILL BE PLANNED ON A COMPREHENSIVE BASIS, DESIGNED AND PHASED TO ENSURE MAXIMUM PRACTICAL INTEGRATION BETWEEN THE DIFFERENT USES AND PROVISION OF ANCILLARY FACILITIES AND SUPPORTING INFRASTRUCTURE. IN PARTICULAR, PROVISION WILL BE MADE FOR:
- A COMPREHENSIVE NETWORK OF SAFE AND CONVENIENT FOOTPATH AND CYCLEWAYS LINKING ALL THE USES AND DESTINATIONS BEYOND THE SITE, WITH PARTICULAR REFERENCE TO THE DISTRICT CENTRE TO THE WEST OF THE RING ROAD;
- A HIGH STANDARD OF BUS PENETRATION AND SIGNIFICANTLY IMPROVED 'RADIAL' SERVICES TO EAST AND CENTRAL BRISTOL AND YATE AND ORBITAL SERVICES LINKING TO MAJOR EMPLOYMENT DESTINATIONS AND TRANSPORT INTERCHANGES IN THE NORTH FRINGE."
"The service improvements will need to be supported by appropriate infrastructure investment to guarantee attractive journey times, facilitate easy access to bus stops, and make available real time bus timetable and route information in order to maximise the use of buses. It is envisaged that a high quality facility for interchange between public transport and car, cycle and walk modes will be provided within the overall development to facilitate express commuting bus services into Bristol and the Bristol North Fringe."
The Claimants rely upon the use of the word "overall" in this section of the text and submit that it indicates that the note is not referring to Emersons Green East but to the overall development at Emersons Green. The Council submits to the contrary. The Council maintains that it is clear that the MMI referred to in paragraph 8.96 is the MMI referred to in paragraph 6.72 and the MMI in the proposals map in that section of the Local Plan. Coming as it does within policy M2 for Emersons Green East, the Council submits that the use of the word "overall" is simply a reference to the overall development of Emersons Green East, not the overall development of Emersons Green, which was not the relevant part of the development under consideration in connection with policy M2. The Council further submits that having regard to the time span between the development in Emersons Green West, which at the material time was far advanced, the reference to the need for sustainable comprehensive development is a reference to the need for prospective developers, not existing developers, to have in mind the requirement for the introduction of systems of public transport, walking and cycling which can compete effectively against the private car and thus reduce the volume of car movements, especially at peak times.
Finally, it should be noted that paragraph 8.104 of the Local Plan provides:
"In order to achieve high standards of design and all the other objectives set out above, the Council and landowners jointly commissioned independent consultants to hold a workshop involving a range of local stakeholders and prepare a 'Concept Statement' as a basis for wider public consultation prior to the preparation of a Supplementary Planning Document for this site. The Concept Statement has been approved for Development Control purposes and as a basis for the preparation of a development brief, which is in preparation. The Council is also pursuing the preparation of a detailed illustrative master plan through the Development Control process."
It is relevant to note that the Concept Statement, endorsed in the Local Plan as the basis for the Brief required by the Local Plan, had been approved by the time the Local Plan was adopted. The Concept Statement summarises the position in relation to Policy 13 of the Adopted Joint Replacement Structure Plan and in my judgment correctly sets out that it contains strategic proposals for Emersons Green East.
The Concept Statement records that Policy M2 of the South Gloucestershire Local Plan accords with and expands upon Policy 13 of the Joint Replacement Structure Plan. It records the policy requirement for a supplementary planning document:
"3.4 In order to ensure that the development is planned on a comprehensive basis, and in order to achieve high standards of design, the emerging SGLP requires the preparation of a supplementary planning document (SPD 4EGE). On 2nd January 2001 the Executive Member for Planning, Transportation and Strategic Environment approved a two stage process for the preparation of supplementary planning guides for the major allocated sites (including EGE). The first stage of the process involved the preparation of a concept statement. The approved concept statement was then to form the basis of stage 2, the preparation of a more detailed development brief. For the avoidance of doubt, where differences arise between the approved concept statement and this brief, the brief will take precedence in determination of planning applications."
The extent of the consultation involved at this stage of the planning process is recorded. A consultation workshop involving a range of local stakeholders and then the preparation of a draft concept statement as a basis for wider public consultation. That was subjected to an extensive public consultation exercise between June and September 2001. After consideration of the responses, a revised Concept Statement was produced in March 2002 and the revised Concept Statement was subjected to a second round of public consultation. And it was on 5th November 2002 that the Concept Statement was approved as a starting point for the preparation of a more detailed development brief.
The Concept Statement Itself
As already recorded, it was to form the basis of a comprehensive Development Brief but the concept itself "is flexible enough to allow a detailed design to evolve at that stage". Under the heading "Development Principles" the Concept Statement states:
"The development will have to ensure a high standard of bus penetration through the site, and significantly improved radial services to east and central Bristol and Yate, and orbital services linking to major employment destinations and transport interchanges in the north fringe. A comprehensive TA will be required. High quality interchange required within the site".
In the same section but a little later:
"The bridge link between the two parts of Emersons Green is a critical element in integrating the community. The Council will promote the idea of a design competition for this element of the development."
The Material Parts of the Development Brief
The Brief records the extent of the close consultation with the main landowners at Emersons Green East (being the Claimants). It records the Council and the landowners had had regard to relevant national planning guidance and national best practice in terms of urban design and master planning. It records that the Council will seek to ensure that the main landowners who are identified submit an application for outline planning permission to develop those parts of Emersons Green East as were not already covered by existing consents or safeguarded for development beyond the Local Plan period. It states that the Council will only grant outline planning permission subject to the provisions of this development brief as adopted and subject to a more detailed illustrative master plan document. It stated that:
"The illustrative master plan document will be prepared by the developers and submitted to SGC as part of the application for outline planning permission."
The Brief was stated to have five specific objectives:
"(1) To define core development objectives for EGE, and to refine and develop the design principles established through the concept statement process.
(2) To set out an indicative framework plan for the development which together with the Brief as a whole will inform the preparation of a more detailed illustrative master plan document.
(3) To promote innovation in residential, commercial and infrastructure design with a view to achieving more sustainable forms of development.
(4) To identify requirements for essential facilities and services, together with responsibility for their provision where practicable.
(5) To ensure the successful and consistent implementation of all design objectives by serving as a robust guide for development control decisions. The adopted development brief will together with the approved illustrative master plan document, be the basis for determining planning applications and concluding associated legal agreements".
The Brief recorded that the Concept Statement had set out the requirement for a new 'feature' pedestrian crossing to link EGE to the existing Emersons Green District Centre. The Council recorded that the pedestrian cycle bridge linking EGE to the District Centre should be designed to be as attractive and safe as possible:
"The provision of a new bridge is essential if the development is to satisfy the Policy 13 of the adopted Joint Structure Plan, Policy M2 of the SGLP and Concept Statement requirement for maximum practical integration between different uses."
Paragraph 11.25 of the Brief states:
"The MMI will be provided within the EGE development. In terms of its location within EGE the MMI will be situated:
- on the stage 1 bus loop (see Figure 13, Public Transport Infrastructure within EGE);
- close to the Avon Ring Road and the Rosary Roundabout, to avoid drawing MMI traffic into the heart of EGE; and
It is these parts of the Brief which the Claimants submit amount to unlawful allocation.
- close to the new bridge link from EGE to the District Centre."
The Council relies upon other parts of the Brief as pointing against a specific allocation being made by the Brief. For example, the framework plan places the MMI with underground car parking in Emersons Green East and illustrates the footbridge connection to the District Centre in Emersons Green West. But the notes state: "This framework plan is indicative and illustrates the proposed layout of EGE. It is not intended to inform the preparation of a more detailed illustrative master plan, which shall be prepared by the developers (see part 18 of this Brief)."
The Council submits that paragraph 11.26 sets out locational criteria and not an allocation and that the subsequent paragraph, paragraph 11.27, refers to the contents as providing an "indicative framework plan".
The Inspector's Report and the Planning Inquiry into Objections to the draft South Gloucestershire Local Plan
The Council submitted that the fundamental contention presently adopted by the Claimants in relation to the siting of the MMI in any part of the overall development of Emersons Green (and not in Emersons Green East) is inconsistent with the approach the Claimants took before the public inquiry into the Local Plan. I am not persuaded that the point goes as far as the Council wished to take it. However, in the extracts of the evidence (relied on by the Council) which I have seen, from an expert who gave evidence on behalf of some of the objectors, it is plain that the expert had read the Local Plan as envisaging the location of the MMI in Emersons Green East and his interpretation does not appear to have been contradicted. In paragraph 11.7 of the Inspector's Report, the Inspector had occasion to refer to Figure 6.3 only in general terms, as follows:
"With the plan committed to an ongoing provision of sites diagrammatically identified in Figure 6.3, and apparently open to other justified proposals that meet the policy criteria, I do not see that picking out "snapshot" sites for special treatment at the time the plan is adopted is either logical or particularly helpful, especially as there is no suggestion that the land use will need safeguarding prior to a grant of planning permission."
Clearly the Inspector was of the view that Figure 6.3 was indicative and not definitive. There seems nothing in the references to which I have been taken in the proceedings before the Inspector or his Report to indicate that he was addressing a position in which the lack of specificity was to be regarded as permitting or envisaging the MMI in a part of the development other than Emersons Green East. The overall impression I draw from this situation is that it seems likely that there were others who formed the view that the Local Plan policies gave rise to an interpretation that the MMI and the pedestrian bridge were to be in Emersons Green East.
Conclusion On Whether There Has Been An Unlawful Allocation In The Development Brief
In my judgment it was open to the Council to conclude that its Brief could provide for an MMI and pedestrian bridge in Emersons Green East and that its Local Plan had made an allocation by way of policy that the MMI and the pedestrian bridge should be in Emersons Green East (see, in relation to the bridge, Structure Plan 2.81. Local Plan paragraph 2.26 in particular). In my judgment the Local Plan must be read in its entirety. There can be no doubt that there was to be an MMI and a bridge. It is impossible to see that it was ever indicated that the MMI and the bridge would be, for example, in Emersons Green West. The supporting text to Policy M2 justifies the interpretation made by the Council that the MMI was to be in Emersons Green East. Figure 6.3 is specific in placing it in Emersons Green East. The siting of the MMI in Emersons Green East by Figure 6.3 is not contradicted by the indicative nature of the proposals or the fact that more detailed proposals were to be investigated. These observations were, in my judgment, to be read as applying to the specific site in Emersons Green East. I reject the suggestion that the Local Plan goes no further than to contemplate or envisage an MMI at Emersons Green East.
I regard the process of close analysis adopted by the Claimants as unreliable. For example, placing weight on what appear to be or could be references to Emersons Green generally as excluding Emersons Green East. For example, paragraph 6.72 of the explanatory text to Policy T5 which is relied upon by the Claimants, states:
"A Multi-modal Interchange site within the Emersons Green development to be implemented by 2007/8".
The Plan must be read in its entirety.
It is not disputed that the Local Plan is a lawful development of the Structure Plan in which this statement was made. There is a statement to the effect:
"The local plan shall be read as a whole. Proposals will be considered against all relevant policies including design environmental criteria set out in chapters 3 and 4".
One must be guarded in detailed planning documents in attributing weight to, for example, an individual statement in the Local Plan but, contrary to the Claimants' suggestion, it does not detract from the policy allocation which the Proposals Plan itself presents. That is because the Proposals Plan is in itself a development of a policy statement in relation to Emersons Green East.
In my judgment it is necessary, when considering the development plan and the Local Plan in relation to Emersons Green East, to have in mind that it was critical to the orderly planning process, including a major mixed use development where associate appropriate infrastructures were to be developed, that the Local Plan should constitute an advance upon the Structure Plan, should move the planning process further forward and, after appropriate consultation, reach the stage where detailed plans for planning permission could be drawn up by developers. This is what the Brief did. The Brief, in conventional terms, provided an indicative framework as to how the Local Plan policy which envisaged an MMI and a bridge at Emersons Green East would be carried forward. It was not making a site specific allocation within Emersons Green East. On an overall reading of the Local Plan, the Council's interpretation is not one reasonable interpretation of the policy. It is the more clear interpretation supporting the conclusion that the Local Plan is referring to the MMI and the bridge as being situated in Emersons Green East and not elsewhere.
The Sustainability Appraisal Forming Part of the Development Brief
The appraisal commences by reciting that:
"This Report has been written in accordance with government guidance and the European Strategic Environmental Assessment Directive. It has also drawn on the strategic sustainability appraisal of the draft South West Regional Spatial Strategy."
A little later the appraisal states:
"This SA Report uses those objectives to appraise the requirements and development brief objectives set out in the Emersons Green Development Brief. It does not appraise the merits of the particular site, nor does it repeat the work that was undertaken as part of the Sustainability Appraisal of the South Gloucestershire Local Plan."
As I have already observed, the Local Plan was not adopted at the time when the SEA directive was in force. However, as the appraisal records, according to then best practice, an SA was made of the Local Plan. That said, at the date of the Brief, the 2004 Act made it mandatory for supplementary planning documents to be subject to an SA. Further, planning authorities also had to conduct an environmental assessment in accordance with the requirements of European Directive 2001/42/EC on the assessments of the effects of certain plans and programmes on the environment. Whilst the two requirements are distinct, it is possible to satisfy both through a single appraisal process and it was expressly stated that the Sustainability Report fulfilled the requirements of an environmental report under the SEA directive. The issue is whether what was done fulfilled the above requirements.
Article 5 of the Directive provides:
"1. Where an environmental assessment is required under Article 3(1), an environmental report shall be prepared in which the likely significant effects on the environment of implementing the plan or programme, and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme, are identified, described and evaluated. The information to be given for this purpose is referred to in Annex 1.
2. The environmental report prepared pursuant to paragraph 1 shall include the information that may reasonably be required taking into account current knowledge and methods of assessment, the contents and level of detail in the plan or programme, its stage in the decision-making process and the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment."
By Article 13 Member States were required to implement the Directive before 21 July 2004 but, of more particular relevance, Article 13(3) provides:-
"3. The obligation referred to in Article 4(1) [being the General Obligations] shall apply to the plans and programmes of which the first formal preparatory act is subsequent to the date referred in paragraph 1 …".
The Claimants submitted that since the Local Plan had not been subject to the SEA provisions, the Council was obliged to carry out an assessment by reference to each of the sub-paragraphs of Annex 1 of the Directive, in effect, submitting the policies in the Local Plan to the requirements of the Directive. I cannot accept that argument. It ignores the terms of the Directive (Articles 4, 5 and 13) and amounts to an attempt to give the Directive retrospective effect by submitting policies developed before the effective date of the Directive to the new regime.
I accept the submission advanced for the Council. Mr Drabble QC submitted that Article 5(2) defines and characterises the obligations laid down by the Directive. The information contained in the report will depend upon a number of factors including the "… stage in the decision-making process and the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment". In this instance I am satisfied that, there being a lawful Local Plan, the strategic development made by the Brief was appropriately directed to indicative proposals for the siting of the MMI and the bridge. That being so, the development proposals from the developers, which will be necessary at the planning application stage, will include assessments by reference to Annex 1 of the Directive. Detailed proposals for parts of the site and detailed work on mitigation aspects will be assessed in an EIA on an application for development.
Having regard to my conclusion on this part of the case, it is not necessary to rehearse the detail of Mr Corner's submissions other than to record that:
(1) there was no requirement to assess the rationale for and alternatives to the development of Emersons Green East;
The stage in the planning process, as Mr Drabble submitted, represented by the Brief, was evolutionary. The SA was required to assess the environmental effects of the Brief from the taking forward of the M2 policy allocation. The Brief did not "introduce" (as the Claimants submitted) the MMI and the bridge. They had already been established by the framework in the Local Plan. Further, since the Brief did not allocate sites for the MMI and the bridge, the approval did not need to assess the merits of a particular allocation or site. It assessed the locational criteria. It follows that there was no breach of paragraph 4.1.6 of the government guidance.
(2) there was no requirement to assess the environmental consequences of the allocation of the development proposals under consideration and the extent to which they could be mitigated;
(3) there was no requirement to justify the overall mix of development; or
(4) justify or assess the infrastructure requirements set out in the Local Plan;
(5) there was no particular scheme to assess.
In the light of my conclusions, an argument advanced to the effect that regulation 12(2) of the 2004 Regulations had been breached does not arise.
I grant permission to apply for judicial review, but the application is dismissed.
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