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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Hoare v The Vale of White Horse District & Ors [2017] EWHC 1711 (Admin) (07 July 2017) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2017/1711.html Cite as: [2018] PTSR 210, [2017] WLR(D) 465, [2017] EWHC 1711 (Admin) |
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QUEEN'S BENCH DIVISION
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
(Sitting as a Deputy High Court Judge)
____________________
DR ANNA HOARE |
Claimant |
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- and - |
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THE VALE OF WHITE HORSE DISTRICT COUNCIL and (1) OXFORDSHIRE COUNTY COUNCIL (2) FARINGDON DISTRICT COUNCIL |
Defendant Interested Parties |
____________________
Ms Suzanne Ornsby QC and Mr Hugh Flanagan (instructed by the Defendant's Head of Legal and Democratic Services) for the Defendant
The Interested Parties were not represented
Hearing dates: 14 and 15 June 2017
____________________
Crown Copyright ©
Mr John Howell QC :
THE STATUTORY FRAMEWORK
"(a) development that consists of a county matter within paragraph 1(1)(a) to (h) of Schedule 1 [to the 1990 Act],
(b) development that consists of the carrying out of any operation, or class of operation, prescribed under paragraph 1(j) of that Schedule (waste development) but that does not consist of development of a prescribed description,
(c) development that falls within Annex 1 to Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (as amended from time to time),
(d) development that consists (whether wholly or partly) of a nationally significant infrastructure project (within the meaning of the Planning Act 2008),
(e) prescribed development or development of a prescribed description, and
(f) development in a prescribed area or an area of a prescribed description."
"(a) having regard to national policies and advice contained in guidance issued by the Secretary of State, it is appropriate to make the [plan],
… ….
(d) the making of the [plan] contributes to the achievement of sustainable development,
(e) the making of the [plan] is in general conformity with the strategic policies contained in the development plan for the area of the authority (or any part of that area),
(f) the making of the [plan] does not breach, and is otherwise compatible with, EU obligations, and
(g) prescribed conditions are met in relation to the [plan] and prescribed matters have been complied with in connection with the proposal for the [plan]."
"(2) The report must recommend either—
(a) that the draft [plan] is submitted to a referendum, or
(b) that modifications specified in the report are made to the draft [plan] and that the draft [plan] as modified is submitted to a referendum, or
(c) that the proposal for the [plan] is refused.
(3) The only modifications that may be recommended are—
(a) modifications that the examiner considers need to be made to secure that the draft [plan] meets the basic conditions mentioned in paragraph 8(2),
.... ...
(c) modifications that the examiner considers need to be made to secure that the draft [plan] complies with the provision made by or under sections [38A and 38B of the 2004 Act],
... , and
(e) modifications for the purpose of correcting errors.
(4) The report may not recommend that an order (with or without modifications) is submitted to a referendum if the examiner considers that the order does not—
(a) meet the basic conditions mentioned in paragraph 8(2), or
(b) comply with the provision made by or under [38A and 38B of the 2004 Act].
....
(6) The report must—
(a) give reasons for each of its recommendations, and
(b) contain a summary of its main findings."
"(4) A local planning authority to whom a proposal for the making of a neighbourhood development plan has been made—
(a) must make a neighbourhood development plan to which the proposal relates if in each applicable referendum under that Schedule (as so applied) more than half of those voting have voted in favour of the plan, and
(b) if paragraph (a) applies, must make the plan as soon as reasonably practicable after the referendum is held and, in any event, by such date as may be prescribed[7].
(6) The authority are not to be subject to the duty under subsection (4)(a) if they consider that the making of the plan would breach, or would otherwise be incompatible with, any EU obligation or any of the Convention rights (within the meaning of theHuman Rights Act 1998)."
"(1) A court may entertain proceedings for questioning a decision to act under [38A(4) or (6) of the 2004 Act] only if—
(a) the proceedings are brought by a claim for judicial review, and
(b) the claim form is filed before the end of the period of 6 weeks beginning with the day after the day on which the decision is published.
(2) A court may entertain proceedings for questioning a decision under paragraph 12 of Schedule 4B (consideration by local planning authority of recommendations made by examiner etc)...only if—
(a) the proceedings are brought by a claim for judicial review, and
(b) the claim form is filed before the end of the period of 6 weeks beginning with the day after the day on which the decision is published.
(3) A court may entertain proceedings for questioning anything relating to a referendum under paragraph 14 or 15 of Schedule 4B only if—
(a) the proceedings are brought by a claim for judicial review, and
(b) the claim form is filed before the end of the period of 6 weeks beginning with the day after the day on which the result of the referendum is declared."
THE FACTUAL BACKGROUND
i. the FNP
"The vision for Faringdon is of an inherently sustainable town with a high degree of self-containment that enables a wide range of people to live, work and socialise, and that meets their day-to-day needs."
"As part of being a town that supports and promotes sustainable lifestyles it is important that more employment opportunities are provided in and around Faringdon. This will bolster the general vitality of the town and the town centre, and also help to reduce out-commuting....Local analysis suggests that the "do-nothing option" would result in a net loss of potential jobs despite a predicted population growth of ca. 3,000 people.....This is felt to be unsustainable. Faringdon would like over a third of the working age population to have the option for local employment or at least a third of those in employment to be employed locally to reduce out commuting. (According to the 2011 census, 50% of the total population were in employment.) This would translate to a minimum aspiration of ca. 1,500 jobs for residents or a target of ca. 2,000 based on a final population figure of ca. 11,000."
"• Ensure that the total number of jobs in Faringdon matches 38% - 44% of the working population of the Faringdon parish;
• Allocate enough employment land to meet the requirements of at least 38% of the working population of the Faringdon parish within a 5 km radius of the centre of the town".
ii. Wicklesham Quarry
iii. Policy 4.5B as modified
"5.6 The Minerals and Waste plan does not impact in any particular way on the FNP and it does not include matters that relate to policies of that plan. Indeed, minerals and waste are excluded matters for the purposes of policy making in neighbourhood plans. I will take this opportunity to confirm that the Neighbourhood Plan does not relate to any excluded matters, meeting that requirement. I have recommended modifications to policy 4.5B (Wicklesham Quarry) in order to clarify supporting text that had generated representations on this point.
7.41 In general terms I am satisfied that the policy meets the basic conditions. The NPPF (paragraph 28) is supportive of the promotion of new economic opportunities in rural areas. The site is on the edge of the town and is adjacent to the existing employment area at Wicklesham Farm. Its promotion in the Plan reflects the Town Council's view that new employment opportunities should be sought and promoted in a development plan context to balance the future new housing growth in the town. To this extent it will contribute to sustainable development.
7.42 Several comments made on this policy question the appropriateness of the inclusion of such a proposal in a neighbourhood plan. Some commentators have commented that it constitutes 'excluded' development (due to its references to quarrying and mineral extraction). The language used in the Plan unhelpfully refers to the existing planning permission for quarrying and the aftercare conditions. However, the policy itself, in supporting employment use, is not excluded development and can appropriately be included in a submitted neighbourhood plan. I recommend extensive modifications to the policy to ensure that it meets the basic conditions. In particular it is beyond the remit of a neighbourhood plan to seek to interfere with the County Council's monitoring and enforcement of conditions on minerals related planning permissions. In the event that development proposals for employment development come forward on this site there will need to be appropriate discussions between the District and the County Councils.
7.43 The submitted policy is also unclear on the range of environmental and landscape safeguards that will be necessary to ensure satisfactory development on this site. My recommended modifications to the policy set out important issues that will need to be addressed in any detailed proposals. They include transport mitigation measures, landscape, ecology and the safeguarding and accessibility of the geological interest on the site. This reflects the policy advice set out in paragraphs 109 and 113 of the NPPF. Paragraph 109 comments that the planning system should protect and enhance valued landscapes, geological conservation interests and soils. Paragraph 113 comments that local planning authorities should set criteria based policies against which proposals for any development on or affecting protected wildlife or geodiversity sites or landscape areas will be judged."
"Of the new sites, Wicklesham Quarry is considered by local stakeholders to be a significant opportunity site that would expand the provision of local jobs. Quarrying activities have finished on this site and it is now being restored to agricultural use with some woodland planting and ponds. This is in accordance with its current permission which requires the removal of the buildings, plant, machinery and structures and the completion of restoration of the site by 30 September 2016.
However, in locational terms it is considered that this site could accommodate some employment use to provide B2/B8 industry in the town with the associated jobs. In addition, it would help to reduce the number of heavy goods vehicles and general traffic currently using Park Road. A site of this scale could also encourage new types of businesses into the parish to help diversify the range of local jobs on offer. The development of the site would need to also deliver a safe crossing over the A420 to serve pedestrians, cyclists and horse riders. This is addressed in the first criterion of the policy. There would be an expectation for a pedestrian crossing of the A420 and which would need to be controlled by traffic signals. Such a pedestrian crossing would be required pursuant to a S278 agreement upon a planning application. Any development on the site would need to be sensitively designed so as to be hidden within the landscape, and as it is designated as a Site of Special Scientific Interest (SSSI). It could only proceed following completion of a geological assessment in consultation with Natural England.
Any future proposals for employment development would need to ensure a sensitive relationship between the former quarrying restoration conditions and the scale, nature and the location of any proposed employment development within the site. Policy 4.5B requires that any employment development of the site provides access to visiting members of the public with an interest in its geological importance. This will ensure that the special geological interest is better revealed and provision made for the protection and enhancement of the geodiversity interest of Wicklesham Quarry."
"Wicklesham Quarry will be safeguarded for employment uses (Classes B2 and B8) following the completion of quarrying and restoration activities on the site. Employment development will be supported on this site if no other suitable sites closer to the town centre are available, providing there is demonstrable need and subject to the following criteria:
i) appropriate transport mitigation is provided; and
ii) appropriate provision is made within the site for pedestrians and cyclists; and
iii) the proposed employment development does not have a detrimental impact on the relationship between the site and the wider landscape in which it sits; and
iv) appropriate ecological mitigation and enhancement measures are incorporated into the proposals; and
v) any development would not result in demonstrable harm to the geological special interest of the site; and
vi) employment proposals should incorporate measures to provide access to the protected site for the visiting public."
WHETHER POLICY 4.5B OF THE FNP IS A PROVISION ABOUT EXCLUDED DEVELOPMENT
" the carrying out of operations in, on, over or under land, or a use of land, where the land is or forms part of a site used or formerly used for the winning and working of minerals and where the operations or use would conflict with or prejudice compliance with a restoration condition or an aftercare condition."
"(1) Where—
(a) planning permission for development consisting of the winning and working of minerals...is granted, and
(b) the permission is subject to a condition requiring that after the winning and working is completed...., the site shall be restored by the use of any or all of the following, namely, subsoil, topsoil and soil-making material,
it may be granted subject also to any such condition as the mineral planning authority think fit requiring that such steps shall be taken as may be necessary to bring land to the required standard for whichever of the following uses is specified in the condition, namely—
(i) use for agriculture;
(ii) use for forestry; or
(iii) use for amenity.
(2) In this Act—
(a) a condition such as is mentioned in paragraph (b) of sub-paragraph (1) is referred to as "a restoration condition"; and
(b) a condition requiring such steps to be taken as are mentioned in that sub-paragraph is referred to as "an aftercare condition".
(3) An aftercare condition may either—
(a) specify the steps to be taken; or
(b) require that the steps be taken in accordance with a scheme (in this Act referred to as an "aftercare scheme") approved by the mineral planning authority.
(4) A mineral planning authority may approve an aftercare scheme in the form in which it is submitted to them or may modify it and approve it as modified.
(5) The steps that may be specified in an aftercare condition or an aftercare scheme may consist of planting, cultivating, fertilising, watering, draining or otherwise treating the land.
(6) Where a step is specified in a condition or a scheme, the period during which it is to be taken may also be specified, but no step may be required to be taken after the expiry of the aftercare period.
(7) In sub-paragraph (6) "the aftercare period" means a period of five years from compliance with the restoration condition or such other maximum period after compliance with that condition as may be prescribed; and in respect of any part of a site, the aftercare period shall commence on compliance with the restoration condition in respect of that part."
"(1) In a case where—
(a) the use specified in an aftercare condition is a use for agriculture; and
(b) the land was in use for agriculture at the time of the grant of the planning permission or had previously been used for that purpose and had not at the time of the grant been used for any authorised purpose since its use for agriculture ceased; and
(c) the Minister has notified the mineral planning authority of the physical characteristics of the land when it was last used for agriculture,
the land is brought to the required standard when its physical characteristics are restored, so far as it is practicable to do so, to what they were when it was last used for agriculture.
(2) In any other case where the use specified in an aftercare condition is a use for agriculture, the land is brought to the required standard when it is reasonably fit for that use.
(3) Where the use specified in an aftercare condition is a use for forestry, the land is brought to the required standard when it is reasonably fit for that use.
(4) Where the use specified in an aftercare condition is a use for amenity, the land is brought to the required standard when it is suitable for sustaining trees, shrubs or other plants.
(5) In this paragraph—
"authorised" means authorised by planning permission;
"forestry" has the same meaning as in paragraph 2; and
"the Minister" means—
(a) in relation to England, the Minister of Agriculture, Fisheries and Food…..."
WHETHER THE DISTRICT COUNCIL WERE SATISFIED LAWFULLY THAT THE FNP MET THE BASIC CONDITIONS
i. general approach
ii. whether it was appropriate to make the FNP given the NPPF's Core Planning Principle for previously developed land
a. background
"Although housing site allocation is not considered in the FNP, Section 4.2 and specifically Policy 4.2A Residential Development Within the Development Boundary, that apart from the proposed strategic site allocations set out in the Local Plan 2011, and the emerging Local Plan 2031, further residential development should be within the existing development boundary. As there is little undeveloped space within the development boundary, apart from protected green spaces, this implies that development will require the re-use of existing sites as in the former factory site at 5 Lechlade Road.
Of more importance in Section 5 Local Jobs is the allocation of two worked out quarries for employment use. Rogers Quarry is allocated as employment land as is Wicklesham Quarry. The latter is specified in Policy 4.5B: Wicklesham Quarry for B2/B8 use with various caveats (the quarry walls are a SSSI) rather than returning it to agricultural use."
"6.4 The NPPF sets out a range of core land-use planning principles to underpin both plan-making and decision-taking. The following are of particular relevance to the Faringdon Neighbourhood Plan:
• a plan led system - in this case the relationship between the neighbourhood plan and the adopted local plan.
• recognising the intrinsic character and beauty of the countryside and supporting thriving local communities.
• proactively driving and supporting economic development to deliver homes, businesses and industrial units and infrastructure.
• actively managing patterns of growth to make the fullest possible use of public transport, walking and cycling.
• taking account of and supporting local strategies to improve health, social and cultural well-being.
• Conserving heritage assets - in this case recognising the importance of the very distinctive conservation area
• Supporting the transition to a low carbon future and taking account of flood risk
The Basic Conditions Statement helpfully lists these and other core principles. It identifies how the FNP addresses and conforms to these important planks of national policy.
6.5 Neighbourhood plans sit within this wider context both generally, and within the more specific presumption in favour of sustainable development, which is identified as a golden thread running through the planning system. Paragraph 16 of the NPPF indicates that neighbourhoods should both develop plans that support the strategic needs set out in local plans and plan positively to support local development that is outside the strategic elements of the development plan.
6.6 In addition to the NPPF I have also taken account of other elements of national planning policy including Planning Practice Guidance and the ministerial statements of March, May and June 2015.
6.7 Having considered all the evidence and representations available as part of the examination I am satisfied that the submitted Plan has had regard to national planning policies and guidance in general terms. It sets out a positive vision for the future of the plan area and promotes sustainable growth. At its heart is an extensive suite of policies that aim to bring forward sustainable development in general, and new economic growth in particular. At the same time, it sets out to safeguard the rich built and natural heritage in the Plan area."
His remaining concern was that modifications were required to certain policies to ensure that the FNP fully accorded with the advice that they should be concise and precise.
"In general terms I am satisfied that the policy meets the basic conditions. The NPPF (paragraph 28) is supportive of the promotion of new economic opportunities in rural areas. The site is on the edge of the town and is adjacent to the existing employment area at Wicklesham Farm. Its promotion in the Plan reflects the Town Council's view that new employment opportunities should be sought and promoted in a development plan context to balance the future new housing growth in the town. To this extent it will contribute to sustainable development."
b. submissions
c. Discussion
" the submitted Plan has had regard to national planning policies and guidance in general terms. It sets out a positive vision for the future of the plan area and promotes sustainable growth. At its heart is an extensive suite of policies that aim to bring forward sustainable development in general, and new economic growth in particular. At the same time, it sets out to safeguard the rich built and natural heritage in the Plan area."
iii. whether the FNP was in general conformity with the strategic policies contained in the development plan for the Council's area
a. general approach
"The court must therefore apply its ordinary meaning as a matter of language, taking into account, however, the practicalities of planning control which are inherent in the statutory scheme....there may be a conflict between the structure plan and the local plan...even though the two are in general conformity...The adjective "general" is there "to introduce a degree of flexibility"...[But] to read "general conformity" as simply meaning that the proposals of the local plan should be "in character" with the structure plan would be to accept too broad a construction...on its true construction the requirement may allow considerable room for manoeuvre within the local plan in the measures taken to reflect structure plan policy, so as to meet the various and changing contingencies that can arise....[But] This flexibility is not unlimited."
"The basic condition at paragraph 8(2)(e) does not refer to the neighbourhood plan..."as a whole". Clearly evaluating the overarching policies and proposals of a neighbourhood plan will be a necessary exercise, but where, as here, a neighbourhood plan contains site-specific proposals, then it will be proper, if not essential, for the examiner additionally to consider those proposals individually against the basic conditions."
b. locational policies in the Local Plan 2011
"the General Locational Strategy is to: i) concentrate development at the five main settlements of Abingdon, Botley, Faringdon, Grove and Wantage, which are designated as local service centres and are defined by the development boundaries on the proposals map .....Development which accords with this strategy will be permitted provided there is no conflict with other policies in this plan."
Policy GS2 provided that:
"Outside the built-up areas of existing settlements (covered by policies GS1, GS3, H11, H12 and H13) new building will not be permitted unless it is on land which has been identified for development in the local plan or is in accordance with other specific policies below."
" GS1 is out of date whilst there is no five year housing land supply. Until this is adopted NPPF paragraph 14 applies. The FNP does not allocate housing sites. Policy 4.2A is in accord with that identified in the Vale of White Horse Local Plan 2031(parts 1 and 2) or its successor document(s).
GS2 is out of date whilst there is no five year housing land supply. The FNP does not allocate housing sites, but is in conformity with GS2. FNP Policy 4.5G is in accord with the Development Plan. Until this is adopted NPPF paragraphs 14 and 55 apply."
"The Basic Conditions Statement includes an assessment of the general conformity of the Neighbourhood Plan with the relevant strategic policies of the Vale of White Horse Local Plan 2011. It is extremely thorough in its assessment of each neighbourhood plan policy against the saved policies in the 2011 Local Plan. I am satisfied that the Neighbourhood Plan is in general conformity with strategic policies contained in the Development Plan for the area."
"I consider that the submitted FNP delivers a local dimension to this strategic context and supplements the detail already included in the adopted development plan. The FNP is in general conformity with the strategic policies in the development plan.
c. conservation policies in the Local Plan 2011
"Development that would destroy or damage a regionally important geological site will not be permitted unless the damage can be prevented or acceptably minimised."
Policy NE4 provided that:
"Development likely to harm a site of nature conservation importance not covered in policies NE2 and NE3 will not be permitted unless it can be clearly demonstrated that the reason for the development clearly outweighs the need to safeguard the nature conservation value of the site and adequate compensatory habitats will be provided."
NE3: "Policy 4.5B regarding Wicklesham Quarry specifies that employment development would be supported on this site if no other suitable sites closer to the town centre are available, providing there is demonstrable need and the following criteria have been satisfactorily addressed there is a clear demonstration that any development would not harm the geological special interest of the site in consultation with Natural England and the District Council. The proposals shall incorporate measures to provide access to the protected site for the visiting public so that the special geological interest is better revealed and provision made for the protection and enhancement of the geodiversity interest of Wicklesham Quarry. This is in conformity with NE3."
NE4: "FNP Policy4.5C emphasises that any development of this site (NW of Gloucester St car park) must incorporate appropriate ecological mitigation measures and compensation in conformity with NE4."
"English Nature is promoting the identification of Regionally Important Geological Sites through the establishment of local groups. These sites will be non-statutory, locally based sites which will be designated and informally and voluntarily managed. Regionally Important Geological Sites are proposed at [certain identified sites] and Wicklesham Quarry, Faringdon. Four of these sites are also identified as Sites of Special Scientific Interest".
This text implies that there may be some process of designation to identify regionally important sites. Neither Mr Ms Ornsby nor Mr Eleftheriadis was able to say whether or not any sites had been designated as such. But, whether or not they have, Policy NE3 itself does not require such designation: provided that the geological interest is sufficiently important (which in this case it was not unreasonably regarded as being), the policy is applicable.
d. Landscape policies
"Faringdon's landscape derives from its setting in a dip at the crest of a ridge. It is, therefore important that Faringdon does not spill over the surrounding hills, or into the Thames Valley, or the Vale of White Horse."
When dealing with design in section 4.7, it notes that:
"Several of the key sites, including the Wicklesham Quarry site..., are visible from elevated vantage points such as Folly Hill and the Folly Tower. Protecting views from these locations needs careful management. The integration with any development with the landscape and particularly the nature of the roof forms will play an important role in achieving successful development."
"...new build of commercial buildings and especially those that form gateways to Faringdon, should be of a scale and form appropriate to their location and landscape setting...."
"The North Vale Corallian Ridge has a striking landform with a steep north facing scarp slope separating the clay vale from the Thames valley. In the west the ridge has been dissected by streams, which have eroded steep slopes to hills such as Badbury Hill and Faringdon Folly. The ridge is characterised by woodland, including a significant proportion of ancient woodland, country houses designed to look out over the scarp, villages built of the local coral ragstone, and expansive views."
Policy NE7 itself stated that:
"Development which would harm the prevailing character and appearance of the North Vale Corallian Ridge, as shown on the proposals map, will not be permitted unless there is an overriding need for the development and all steps will be taken to minimise the impact on the landscape."
"Policy 4.7E requires development to be sensitive to its landscape setting. Section 4.12 gives further information about the importance of the Corallian Ridge setting to the town and sets objectives to ensure the important [landscape] setting is protected. This is in conformity with NE7."
e. Minerals and Waste Local Plan
"The County Council considers that mineral working is not acceptable without satisfactory restoration and after-use. This applies not only to the establishment of after-uses but to their long-term management and maintenance."
Mr Eleftheriadis relies on Policies PE13 and PE14. These provide that:
"PE13. Mineral workings and landfill sites should be restored within a reasonable timescale to an after-use appropriate to the location and surroundings. Proposals for restoration, aftercare and after-use should be submitted at the same time as any application for mineral working. Planning permission will not be granted for mineral working or landfill sites unless satisfactory proposals have been made for the restoration and after-use, and means of securing them in the long term.
PE14 Sites of nature conservation importance should not be damaged. Proposals which would affect a nature conservation interest will be assessed by taking into account the importance of the affected interest; the degree and permanence of the projected damage; and the extent to which replacement habitat can be expected to preserve the interest in the long-term."
f. conclusion
iv. strategic environmental assessment
a. introduction
"(2) The report shall identify, describe and evaluate the likely significant effects on the environment of–
(a) implementing the plan or programme; and
(b) reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme.
(3) The report shall include such of the information referred to in Schedule 2 to these Regulations as may reasonably be required, taking account of–
(a) current knowledge and methods of assessment;
(b) the contents and level of detail in the plan or programme;
(c) the stage of the plan or programme in the decision-making process; and
(d) the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment."
"1. An outline of the contents and main objectives of the plan or programme, and of its relationship with other relevant plans and programmes.
2. The relevant aspects of the current state of the environment and the likely evolution thereof without implementation of the plan or programme.
3. The environmental characteristics of areas likely to be significantly affected.
4. Any existing environmental problems which are relevant to the plan or programme including, in particular, those relating to any areas of a particular environmental importance, such as areas designated pursuant to Council Directive 79/409/EEC on the conservation of wild birds(a) and the Habitats Directive.
5. The environmental protection objectives, established at international, Community or Member State level, which are relevant to the plan or programme and the way those objectives and any environmental considerations have been taken into account during its preparation.
6. The likely significant effects on the environment, including short, medium and long-term effects, permanent and temporary effects, positive and negative effects, and secondary, cumulative and synergistic effects, on issues such as—
(a) biodiversity;
(b) population;
(c) human health;
(d) fauna;
(e) flora;
(f) soil;
(g) water;
(h) air;
(i) climatic factors;
(j) material assets;
(k) cultural heritage, including architectural and archaeological heritage;
(l) landscape; and
(m) the inter-relationship between the issues referred to in sub-paragraphs (a) to (l).
7. The measures envisaged to prevent, reduce and as fully as possible offset any significant adverse effects on the environment of implementing the plan or programme.
8. An outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties (such as technical deficiencies or lack of know-how) encountered in compiling the required information.
9. A description of the measures envisaged concerning monitoring in accordance with regulation 17.
10. A non-technical summary of the information provided under paragraphs 1 to 9."
b. The alleged errors of fact
"2.6 SA is in line with the SEA regulations and also widens the scope of the assessment from a focus on environmental issues to also consider social and economic issues. The SA report satisfies all requirements.
2.9 Having reviewed the information provided to me as part of the examination I am satisfied that a thorough, comprehensive and proportionate process has been undertaken in accordance with the various regulations. The information provided is succinct and proportionate to the FNP. The whole process provides confidence both in general and in terms of the associated consultation process in particular. None of the statutory consultees have raised any concerns with regard to either neighbourhood plan or to European obligations. I am satisfied that the submitted FNP is compatible with this aspect of European obligations."
c. the alleged failure to consider reasonable alternatives
"• Ensure that the total number of jobs in Faringdon matches 38% - 44% of the working population of the Faringdon parish;
• Allocate enough employment land to meet the requirements of at least 38% of the working population of the Faringdon parish within a 5 km radius of the centre of the town".
I have also set out references in the Plan to the analysis that the three sites that were to be allocated in the Local Plan 2031 would be insufficient to meet those objectives. (That analysis was supplemented when the FNP was resubmitted in 2015 by a revised Evidence Base Review which, among other things, criticised the two studies on which Mr Eleftheriadis relied.) As I have mentioned the conclusion in the FNP was that, given these objectives and analysis, each of the further four sites it identified for employment was "essential to the town's future employment development and must be protected for such growth."
"11.1.5 A central element of the FNP is a focus on the self-containment and economic and community vitality of Faringdon. To support this, it was considered by plan-makers that a range of potential employment sites should be put forward by the FNP over and above the strategic sites included in the Vale of White Horse Local Plan 2031 Part 1 (LPP1). A key element of the FNP preparation process has therefore been to identify potential additional sites in Faringdon which, in the period to 2031, may be appropriate for the development and/or intensification of employment uses.
11.1.6 Further to extensive consultation with the local community and stakeholders, and discussion within the FNP Steering Group, a 'long list' of sites was proposed for consideration through the FNP development process...
11.1.7 To inform the choice of sites to be taken forward in the draft plan, the relative sustainability performance of the eleven sites highlighted above were considered by the SA process as reasonable alternatives as it was not necessary to develop all the sites and therefore a choice between them was necessary.
11.1.11 Appendix III presents the detailed findings of the appraisal of the eleven sites proposed for employment uses outlined above. Each site has been appraised against the SA Framework."
d. conclusion
RELIEF
"The High Court—
(a) must refuse to grant relief on an application for judicial review,
.... ....
if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred."
CONCLUSION
Note 1 by virtue of section 38B(6) of the 2004 Act. [Back] Note 2 see regulation 14 of the Neighbourhood Planning (General Regulations) 2012. [Back] Note 3 see regulation 15 of the Neighbourhood Planning (General Regulations) 2012}. [Back] Note 4 see regulation 16 of the Neighbourhood Planning (General Regulations) 2012. [Back] Note 5 see paragraph 8(1) of Schedule 4B to the 1990 Act. [Back] Note 6 as adapted in accordance with section 38C(5) of the 2004 Act. [Back] Note 7 The date prescribed for this purpose is the date which is the last day of the period of 8 weeks beginning with the day immediately following that on which the last applicable referendum is held unless proceedings for questioning anything relating to an applicable referendum are brought in accordance with section 61N(3) before the neighbourhood development plan is made: see regulation 18A of the Neighbourhood Planning (General) Regulations 2012. The date is not postponed, however, if proceedings are brought in accordance with section 61N(2) as in this case.
[Back] Note 8 see the FNP at [2.1] and [4.2]. [Back] Note 9 see the FNP 2 Local issues. [Back] Note 10 See the FNP Section 3 “The vision for family Faringdon”. [Back] Note 11 see the FNP at [4.5]. [Back] Note 12 see the FNP at p48. [Back] Note 13 See paragraph [28] above. [Back] Note 14 Although expressions used in this 2004 Act and in the 1990 Act have the same meaning in 2004 Act as in the 1990 Act (by virtue of section 117 of the 2004 Act), the 2004 Act does not itself contain those expressions nor is the 2014 Act to be construed as one with the 1990 Act. Nonetheless it could be argued that, since section 61K of the 1990 Act (which requires reference to those expressions) applies for the purpose of section 38B(1)(b) of the 2004 Act, they are in fact “used” in the 2004 Act. [Back] Note 15 See paragraph [29] above. [Back] Note 16 For example see paragraph [2.5]. It is not clear in what sense “restoration” is used in paragraph [3.4] of the scheme that says that “the sward [in the grass areas] will be topped during spring and summer as required and incorporated with the following year’s restoration into the arable rotation.” [Back] Note 17 See paragraph [37] above. [Back] Note 18 cf section 72(1)(a) and (5) of the 1990 Act. [Back] Note 19 see eg R v Lord President of the Privy Council ex p. Page [1993] AC 682 at 702C-D; R v Governor of Brixton Prison ex p Levin [1997] AC 741 at 749A; Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PTSR 983 at [31]. Recognition that this question goes to the legal effect of the error rather than merely to discretion about relief is of particular significance when the legal effect of some action purportedly done under statutory powers is in issue in a claim in respect of which the court or tribunal has no discretion. [Back] Note 20 see paragraph 8(2)(a) of Schedule 4B to the 1990 Act. [Back] Note 21 He agreed, however, that the meaning of “general conformity was a matter for the court as did Wall LJ: see at [68] and [91]. [Back] Note 22 The Claimant contends that the Quarry supports a population of Great Crested Newts around certain ponds. Policy NE5 of the Local Plan 2011 addresses the protection of that among other species. But that policy is not one identified as a strategic policy in the Basic Conditions Statement; its classification was not impugned by the Claimant and Mr Eleftheriadis did not rely on it. [Back] Note 23 see article 1 of the SEA Directive. [Back] Note 24 see article 2(b) of the SEA Directive. [Back] Note 25 As David Widdicombe QC stated in Westminster City Council v Secretary of State for the Environment and City Commercial Real Estates Investments [1984] JPL 27 when considering section 242 of the Town and Country Planning Act 1971 (which became section 284 of the 1990 Act). The 1990 Act distinguished between “questioning in any legal proceedings” (referred to in section 284) and something being “questioned in any proceedings” (in section 285) and calling something into question “in any legal proceedings, or in any proceedings under this Act which are not legal proceedings” (in section 286). [Back]