MR JUSTICE OUSELEY:
- Bovis Homes Ltd seeks an order under section 287 of the Town and Country Planning Act 1990 quashing so much of the New Forest District Local Plan as designates land north of Totton, Hampshire, as part of the New Forest Heritage Area. In effect this means that part of the proposals map would be quashed. No policy would need to be quashed because there is no policy as such which designates the area in contention as part of the Heritage Area and none of the development control policies applying to that Area are of themselves objectionable in relation to a properly designated Heritage Area.
- Bovis contends that the adoption by the New Forest District Council of its local plan was unlawful because the Council had given legally inadequate reasons for its rejection of the recommendation of the local planning inspector that the area in question should not be within the Heritage Area. It contends that the issue was approached with a closed mind and that the Council's decision was vitiated by apparent bias on the part of the chairman of the relevant committee, the Planning and Transportation Committee. Bovis also contends that this particular decision-making process breached its human rights contained within Article 6 of the European Convention on Human Rights. It did not contend that, if the statutory provisions were properly interpreted, the local plan process was incompatible with its Convention rights.
- The New Forest is one of the largest areas of unenclosed land in the south of England. It was established as a Royal Forest in 1079. Bylaws govern the unenclosed land, applied by the Verderers to the area known as the Perambulation, established by the New Forest Act 1864. The boundary of the Perambulation lies some 5 kilometres within the New Forest Heritage Area as it is currently designated in the adopted Local Plan. The area in contention in this case lies to the north of Totton. It is bounded to the west by the new dual carriageway Totton western bypass (the A326), from north to east by the A36 and in the south by two roads which approximately mark the northern edge of Totton. The area is sometimes called "Land North of Totton". It can be seen very roughly as the south west quadrant of a larger area of land between Totton and the M27 further to the north, which was at one time proposed for inclusion in the Heritage Area but now is outside it. The New Forest starts or continues (depending on one's point of view) to the west of the A326.
- The origin of the New Forest Heritage Area lay in the need, recognised in the mid-1980s, to protect a wider area than that managed by the Forestry Commission in order to preserve the character of the New Forest and its essential grazing land. It was not at that time to be a national park, but the area covered by the New Forest Heritage Area was to have equivalent status in terms of the planning approach to development within it. The Forestry Commission had set up a review group in 1986 which, recognising the need for safeguarding some of the surrounding lands and for coordinated action over that wider area, led to the eventual setting up in 1990 of the New Forest Committee ('NFC'). This non-statutory body drew its membership from Hampshire County Council, New Forest District Council, the Verderers, the Forestry Commission and the Countryside Commission, now the Countryside Agency. Its purpose was to formalise liaison between various interested parties. In a letter to the Chairman of the Forestry Commission from the Minister of Agriculture, undated but probably written around the end of 1989, the Minister had endorsed the review group's recommendation for the establishment of the NFC, disagreed with the boundaries of the Heritage Area as then designated by the District Council, and asked the NFC to agree revised Heritage Area boundaries so as to incorporate essential grazing land and the best of the landscape around the perambulation in order that the area would justify the application within its boundaries of land management policies similar to those which applied within a national park. The then Heritage Area boundaries were seen as too widely drawn for that purpose, rather than the reverse.
- In late 1989 the District Council produced the consultation draft of the New Forest District East Local Plan. The "land north of Totton" was shown as a potential principal growth sector, not part of any Heritage Area.
- Although by 1989/1990 the NFC was the body thought to be appropriate to define the revised Heritage Area boundaries, in fact their definition became a matter for the local planning system. The Hampshire Structure Plan required those boundaries to be defined through the Local Plan process. This was to become a matter to which a number of bodies, not least the New Forest District Council, were but slowly, if ever truly, to be reconciled. The role of the NFC in setting those boundaries, and the District Council's attitude towards the involvement of independent scrutiny have underlain some admittedly justified criticism of the District Council's approach to the setting of those boundaries.
- In January 1991 the NFC appointed Land Use Consultants ('LUC') to recommend redefined boundaries for the New Forest Heritage Area which could then secure equivalent status to that of national parks. The June 1991 LUC report is a lengthy, detailed and structured analysis of landscape types and of information on grazing and ecology. It sets out criteria for the inclusion of land and for the drawing of boundaries. These criteria were applied in the Local Plan process by both the District Council and by Local Plan Inquiry Inspectors. Their value was not disputed, albeit that their application to specific areas was sometimes, as here, highly contentious. It is clear that "natural beauty" was not a matter to be resolved simply according to the eye of the beholder.
- The criteria as recommended by LUC appeared in the Local Plan as follows:
"D1.4 The two principal criteria used by the New Forest Committee for defining the New Forest boundary were:
ito incorporate the land of outstanding national importance for its natural beauty, including flora, fauna, geological and physiographical features, and elements arising from human influence on the landscape, including archaeological, historical, cultural, architectural and vernacular features;
ii to incorporate essential grazing land. This includes peripheral farmland which is or has recently been used as grazing land in conjunction with the New Forest, or which is part of an area which could be suitable to be utilised for grazing relating to the forest (whether with Forest Rights or not) so as in aggregate to include a sufficient pool of land to provide an adequate supply of back-up and the continued functioning of the historic dispersed pastoral regime relating to New Forest commoning in the long term. Convenience of access to the open forest was also considered in this context.
D1.5The detailed alignment of the boundary also takes into account the need to:
iincorporate the minimum area of land beyond the open forest which is essential to protect important open forest landscapes in the long term;
ii ensure continuity of local ecological habitats between the open forest and adjoining land; and
iii utilise, wherever possible, easily recognisable physical features such as roads or rivers."
- Mr Charles George QC for Bovis suggested that the LUC report contained a further criterion or at least a gloss on the first criterion, namely of "visual and historic links". One of the landscape types identified by LUC was "ancient forest farmlands" or Landscape Type 5. Seven of the ten types identified were seen as New Forest types or as part of the wider New Forest landscape and meriting, therefore, inclusion within the Heritage Area. Type 5 was described thus:
"2.22 The ancient farmed and wooded landscapes of the Forest. Most of the large ancient woodland complexes, outside the Forest core, occur within this landscape type. These create a strong sense of enclosure and form important ecological corridors linking the Forest core with the surrounding farmland. The undisturbed rural character of this landscape offers a contrast to the busier enclosed landscapes of both the heathland, the Forest smallholdings and dwellings types."
- It was also described as providing an impression of "being in the forest".
- The report recommended the inclusion of the wider area around what is now the "Land North of Totton" within the Heritage Area as part of the ancient forest farmlands.
- In April 1991 the District Council produced the Deposit Draft of the New Forest District East Local Plan. The "Land North of Totton" was not shown within the Heritage Area. However, this was changed after LUC's June 1991 report. The whole of the wider area was then included within the Heritage Area. Bovis, amongst others, objected to the inclusion of this land within the New Forest Heritage Area and its objection was heard at a public inquiry into objections to the NFD(E) Local Plan. Detailed evidence was produced to the inquiry on both sides. The inspector upheld the objections. His conclusions, however, relate to the wider area as a whole. He was not considering discretely smaller areas within that wider area, as the District Council was later at pains to point out. Neither, however, did he suggest that conclusions good for the whole area might be inapplicable to any significant parts of it. The District Council summarised the Inspector's lengthy analysis as follows:
"12.1.1While there is a strong sense of landscape continuity throughout the objection area, there are subtle differences between the landscape to the north of the low ridge that traverses the area between the A36 and M27, and that to the south.
12.1.2 The landscape to the north of the ridge is open with panoramic views. The area is characterised by large fields, with relatively few hedgerow trees and copses. The M27, pylons and overhead power lines are intrusive features.
12.1.3 South of the ridge there is a significant increase in the numbers of hedgerow trees, and these, together with the smaller field pattern create a greater sense of enclosure. At present this enjoys visual and ecological links with the area to the est. However, completion of the Totton Western Bypass will totally sever the area from the remainder of the Forest.
12.1.4 While displaying some of the characteristics of landscape type 5, ancient Forest farmland, the objection area does not display these characteristics in sufficient strength or depth to justify its inclusion in the Heritage Area as part of the wider Forest landscape. Neither is its inclusion justified for the reason of outstanding national importance for its natural beauty. It cannot be included on grounds that it constitutes land required as essential back-up grazing. The line of the Totton Western Bypass and the M27 link will form a clear and defensible boundary."
- The ridge to which the Inspector refers runs to the north of the currently contentious area in an approximately northeasterly direction. He also concluded that even south of the ridge the area failed to achieve a sense of "being in the forest". His conclusions are expressed with robust conviction, rather than as the result of a striking of a difficult balance.
- In April 1994 the District Council resolved that it was not minded to accept that recommendation in so far as it related to the land in question in this case. That is the part between the A36 and the Totton Western Bypass. The NFC had previously advised the District Council to include that land within the Heritage Area by way of objection to the Inspector's recommendation. Its reasons, in summary, were that the landscape displayed characteristics, particularly south of the A36, similar to those found on land included within the Heritage Area, and that the Inspector's distinction between landscape types could be explored and a clear boundary based on the A36 then defined.
- The Secretary of State for the Environment, through the Regional Office, wrote to the District Council on 28th September 1994 expressing concern that such a decision by the Council should be appropriately justified. He said:
"He has carefully considered the reasons set out for the Council's proposed
modification. In his view the reasons given do not provide convincing justification for overriding the Inspector's conclusions and recommendation, particularly with regard to the effect of the Totton Western Bypass and the role which the road would play as a firm boundary to the Heritage Area. The Secretary of State therefore requests the Council to reconsider its proposed modification at paragraph 12.1.8 of the Modifications, to redefine the boundary as recommended by the Inspector or to provide further reasons if they do not propose to do so.
This letter and the Council's response should be placed on deposit along with other representations on the proposed modifications."
- Bovis unsuccessfully sought a new public inquiry.
- The District Council dealt with the problem at that stage by a holding policy. It resolved on 13th September 1995, not that the land in question should be within the Heritage Area, but that:
"Land North of Totton ... is a protected area within which development will not be permitted which would prejudice consideration of the inclusion of the land within the New Forest Heritage Area."
- The New Forest District (East) Local Plan was then adopted without legal challenge on 8th December 1995.
- However, the District Council's Avon Valley Local Plan was the subject matter of a successful reasons challenge in relation to the justification given for the rejection of an inspector's recommendation against the inclusion within the Heritage Area of land owned by Hall Aggregates in the Avon Valley. Reliance was placed on this case by Mr George as showing the District Council's propensity for rejecting views of inspectors and for inadequate reasoning, as well because of the way in which the judge approached the inadequacy of reasoning in relation to the complex issues involved in fixing Heritage Area boundary. The reasons given in that case by the New Forest District Council did little more than reiterate its thinking, which necessarily underlay the inclusion of the land in the Heritage Area in the first place, notwithstanding the Inspector's careful and detailed analysis of the relevant issues (see Hall Aggregates (South Coast) Ltd v New Forest DC  72 P&CR 567). Mr Nigel Macleod QC, sitting as a Deputy High Court Judge said at page 574:
"I have laid out this detailed analysis because it indicates the substantial points in debate, which are specifically directed towards the agreed criteria, which in turn, in the inspector's view, could only be completely understood by a proper appreciation of those issues which he had identified in his introduction to this topic. The matter under consideration was complex. In my judgment, the Inspector's report constituted careful reasoning reflecting that complexity, and the conclusion reached was overwhelming."
- In November 1995 the draft New Forest District Local Plan was placed on deposit. It was the district-wide Local Plan. The "Land North of Totton" was shown within the Heritage Area. Bovis, and others, objected and provided substantial written and oral evidence in support of its objection at the Local Plan Inquiry. Its evidence provided by its consultant was a detailed analysis of the land in question in relation to the LUC criteria. By this time the actual, as opposed to the predicted, impact of the completed A326 could be taken into account. New Forest District Council gave evidence through a planning officer, Mr Ashworth, and through a member of the Countryside Commission, Mr Coleman. He was also that Commission's representative on the New Forest Committee. Mr Ashworth dealt with the evolution of the Heritage Area boundary. He pointed out that the safeguarding policy had been devised to protect the position, whilst the Countryside Commission, with the support of the New Forest Committee, conducted a further study of the area now in question. Its conclusions were: "Progress via the New Forest Committee". He said that if the commission and NFC conclusion had been that the land should be excluded it would have been excluded, but that had not been the Commission's conclusions. He added, in a passage relied on by Mr George as showing the extent to which the Council deferred to the NFC:
"1.17 It is important to note from this summary of the key stages in arriving at the current position that the District Council has consistently followed the recommendations of the New Forest Committee. Clearly the designated New Forest area which has National park status for planning purposes should only have one boundary and the boundary in the statutory development plan should coincide with that promoted by the New Forest Committee for other purposes. The position taken by the District Council is entirely in line with that proposed by the Minister in 'The Future for the New Forest' (March 1990) where he stated that:
'... we take the view that the way forward would be for the new Heritage Area Committee (now called the New Forest Committee) to agree revised boundaries to incorporate essential grazing land as well as the best of the landscape around the Forest's perambulation in consultation with the Countryside Commission as appropriate.'
(Library Document 6.8: 'The Future of the New Forest'; Appendix A, paragraph 6.)"
- Mr Ashworth emphasised that the criteria for including or not including land within the Heritage Area were landscape, ecological and grazing. The need for housing land was irrelevant. He did so because Bovis and others were also seeking a residential allocation on the objection land, and it was being said by Test Valley Borough Council, the neighbouring authority which also objected to the inclusion of this land within the Heritage Area, that it had been included within the Heritage Area so as to foil development prospects, rather than because of any intrinsic New Forest qualities which it might possess. Mr Coleman supported the LUC criteria and stated the issue to be whether any of the land east of the A326 met the agreed criteria, and, as a consequence, what was the most appropriate boundary. A landscape assessment was provided. The conclusion was:
"2.28 The objection site retains sufficient visual and ecological links with
the land to the West and sufficient 'ancient forest farmland' character to justify its inclusion within the area of outstanding importance for natural beauty. It has some potential for grazing use by commoners and this adds weight to its inclusion."
- The inspector in his report of August 1998 stated that his conclusions on the boundary of the Heritage Area rested on LUC's criteria, not upon any need to avoid constraints to long-term housing provision in north Totton. He agreed with the District Council's witnesses that the objection land did "not warrant inclusion in the New Forest on the grazing criterion alone, but that some weight should be given to this factor". He continued:
"5.1.14. I turn now to the consideration of the objection land in terms of its outstanding national importance for its natural beauty, its flora, fauna, geological and physiographical features, and the elements arising from human influences on the landscape, including archaeological, historical, cultural, architectural and vernacular features, (as referenced in para 1.6 (ii) of DOC/6.2). Mr Beasley in 1992 does consider there to be discernible contrasts between the landscape character of the areas lying to the north and to the south of the ridge at Hillstreet, but concludes that neither area conveys a sense of 'being in the Forest', and considers the southern area to have many of the characteristics of rural landscapes immediately beyond built-up areas. It could however be argued that areas further to the south and to the west of the A326 Bypass at Totton in the New Forest also have urban fringe characteristics particularly with sporadic and ribbon housing development, but the A326 sets a well-defined barrier to further outward urban expansion, and having crossed the 'barrier' there is a sense of continuity and relationship with the New Forest countryside. In respect of the objection area, both the A36 and the A326 are satisfactory as strong physical features on the ground to demarcate the New Forest. However the A326 does set a stronger barrier ecologically, and is also much more invasive into the local topography. Landscape planting as it further matures will assist in assimilating the A326 into the local landscape and will screen traffic from view from the land on both sides of the road, but the fact remains that it is an alien feature 'within' the New Forest landscape.
5.1.15 The objection land is categorised as Landscape Type 5 (LT5) ancient forest farmland, and is part of a wider area identified by the LUC as running from the boundary of the Perambulation at Goldenhayes through to Wade Hill. Part of this block of LT5 has already been excluded from the New Forest as already referenced. The A326 is now a reality and the question remains whether there is sufficient historical and visual continuity to justify the retention of the objection land as an integral part of the New Forest, having regard to the intervention of the A326. Are the linkages sufficiently strong? There is a limited measure of historical and visual continuity. There is some measure of continuity in landscape and wooded character; the heathland and ecological linkages are weak and ancient woodland links do not exist. There are commoning linkages but these are not strongly established. Collectively the linkages are not of sufficient force to justify including this relatively limited outer area of land within the body of the New Forest. The A326 Bypass is a key consideration in this determination, and I conclude as did Mr Beasley in June 1993, that it forms a clear and defensible boundary for the New Forest in this locality. Notwithstanding the fact that the objection site differs from that considered by Mr Beasley, I do not disagree with his other conclusions nor does the evidence placed before me persuade me otherwise, that the land is of outstanding national importance for its natural beauty in its own right for inclusion in the New Forest."
- He rejected the objection by Bovis that the land should be allocated for housing because, although it would become "built-up area edge land having least policy constraints" (on his approach to the Heritage Area), nonetheless a firm northern boundary to Totton's built-up area would thereby be breached. This latter conclusion was overtaken by the Council's approach to the Heritage Area boundary, but it is plainly a conclusion which it otherwise would have been entitled to accept and no complaint is made of it. The Council relies on that in relation to Bovis' human rights case.
- The District Council considered these recommendations initially in January 1999. The Officer's report to the Planning and Transportation Committee referred to the Inspector's recommendations and advised:
"3.83 Given that the Inspector has considered all the available information in relation to the sites listed above, and that no new information is available to provide a reason for rejecting his recommendations, it is considered that at this stage, there is no option other than to publish modifications for public comment which accord with these boundary changes. The one in the Avon Valley is already District Council policy. Other updating is also proposed to this part of the plan.
3.84For some time it has been apparent that the local plan process is an inappropriate mechanism for establishing the boundary of an area of national importance. However, it is a requirement of the approved Hampshire County Structure Plan that for planning purposes the boundary of the NFHA be defined in local plans."
- However, the Committee resolved to reject both that advice and the inspector's recommendations on the grounds that (paragraph (a)(ii) 1 and 2):
"1. This would exclude from the New Forest Heritage Area land which the Countryside Commission, who advise Government on National Park issues, have concluded and advised should remain within the Heritage Area; and
2. It is premature to exclude this land from the Heritage Area before the Government has made its announcement on measures to designate and give special protection to the New Forest Heritage Area which are equivalent to that of a National Park."
- On 27th January 1999 the District Council considered a further report about the status of the New Forest which by now was being considered for a special status equivalent to a national park. The Council recognised that there would be differences between the Heritage Area as defined in the Local Plan, quite apart from the debate over "Land North of Totton", and that approved by the New Forest Committee. It firmly expressed the view that the boundary for the area of special status equivalent to that of a national park should not be determined through the Local Plan process but should be as "approved by the New Forest Committee", potentially including areas deleted in the earlier Local Plan process. This again was said by Mr George to show the subordination of the Council's views to those of the NFC.
- In April 1999 Bovis objected to the proposed modifications consequent upon the Council's consideration of the Inspector's Report and also objected to the reasoning given by the Council for its rejection of the Inspector's recommendation. On 9th April 1999 the Secretary of State for the Environment wrote objecting to the Council's approach on this particular aspect. He said:
"The Council have not accepted the Inspector's recommendation that land north of Totton be excluded from the New Forest Heritage Area. The Secretary of State consider that the council have not provided convincing reasons for overriding the Inspector's conclusions and recommendations. It is insufficient merely to refer to evidence which has already been considered at the local plan inquiry. In addition it is incumbent on the local authority to reach a decision on the New Forest Heritage Area boundary in the context of the local plan and it is not appropriate to comment that the matter is premature in the light of possible future announcements about the status of the New Forest. Accordingly, the Secretary of State requests the Council to reconsider its decision not to accept the Inspector's recommendation at section 5.1.17 of his report, or provide further reasons if the Council propose not to do so."
- I have taken the summary of the Secretary of State's point from the schedule of objections by him to the proposed modifications.
- On 17th June 1999, following a meeting with the Regional Director of the Countryside Agency, as it was now called, Mr Ashworth wrote to her confirming the discussion which they had had over the Heritage Area boundary and the Agency's representations. The terms of the letter are reflected almost verbatim in the Officer's report setting out the Agency's viewpoint, as the letter written by the District Council said they would be. The Regional Director had been a member of the New Forest Committee since April 1997.
- The matter next came before the Planning and Transportation Committee on 7th July 1999. Following elections in May of that year, eleven out of the twenty Committee members were new members who had not participated in the January 1999 decision. Councillor Drake, who was a member of the Committee in January 1999, was by now its Chairman. From 1989 to 1992 she had also served in her capacity as a district councillor on the New Forest Committee. She became a member of that Committee again in May 1999. She first attended a meeting in August 1999. Ms Malcolm, the Council's Director of Planning, was also a member of the New Forest Committee.
- On 2nd July 1999 all members of the Planning and Transportation Committee were circulated with a package of background information, which included the relevant LUC criteria, extracts from the LUC report and from the first Local Plan Inspector's report, and an aerial paragraph of the land in question. There was an officer's report which included as an appendix relevant extracts from the 1998 Local Plan Inspector's report. This report is important. It explained the approach required to the consideration of objections. It referred to the need to "apply an open mind fairly and reasonably to the objections and the report and recommendation of the Inspector". Reasons had to "deal with the substantial points that have been raised". It continued:
"... it is important for members to remember that the Council is in effect 'judge and jury' in these matters and therefore must deal with the objections thoroughly, conscientiously and fairly, as laid down by the Courts. This must be done objectively. This is particularly so where the Council is departing from the recommendation of the local plan Inspector and wishes to alter, add or amend the reasons that it has previously given."
- In dealing with "general representations", the report pointed out that the desire of the New Forest Committee and the Countryside Agency respectively, that the Heritage Area boundary should not be defined through the Local Plan process or at least not until a government announcement on national parks status, could not be accommodated because the Structure Plan, as the Government had required in 1994, required the Local Plan to define the Heritage Area boundary. The report set out the objections from Bovis and others in short form and referred to the Secretary of State's objection. It referred to the supporters of the modification and the stance, including the NFC, and then turned to the Countryside Agency at contrasting length. It said that the Agency had clarified its representations, which previously had dealt with timing and procedure. I set out those representations, drawn as they are very closely from the Council's own letter to the Agency, because they became, in effect, the reasons adopted by the District Council for its rejection of the Inspector's recommendation:
"3.26. The Countryside Agency have made the following points (note, a copy of the relevant part of the Inspector's report is included at Annex 4 to this report):
i. While recognising the points made by GOSE about the Structure Plan and other processes, they remain concerned about the way in which the boundary of an area which is treated for planning purposes as if it were National Park is being determined through the local plan process.
ii. Having considered the Inspector's conclusions and recommendations, they remain of the view that this land meets the landscape criterion for inclusion of land in the NFHA. The Inspector does not question Land Use Consultants' classification of the area as Landscape Type 5, Ancient Forest Farmland, which is a landscape type suitable for inclusion in the NFHA, and he accepts that in terms of its landscape and wooded character, it demonstrates a measure of continuity with the NFHA to the west (Inspector's report paragraph 5.1.15). In his paragraph 5.1.14, he goes so far as to refer to the road as an alien feature 'within' the New Forest landscape, which is to accept that the land north of Totton forms part of this landscape. In referring to the previous local plan inspector's conclusions in respect of the wider area then proposed for inclusion in the NFHA, he points out that the land north of Totton shares many characteristics of land west and south of Totton which is included in the NFHA (inspector's report paragraph 5.1.14).
iii. In terms of the boundary criterion for including land in the NFHA, they do not dissent from the Inspector's view that either the A326 or the A36 would form a satisfactory physical feature of demarcating the NFHA (Inspector's report paragraph 5.1.14).
iv. The Inspector concludes that collectively, the linkages with the NFHA are not of sufficient force to justify including this land within the NFHA. The Countryside Agency consider that the determining factor in his argument seems to be the impact of the A326 Totton Western Bypass. They consider that the Inspector has focused on linkages across the road, whereas he should have been considering whether:
(a) the disruption/disturbance caused by the A326 to the land north of Totton is so strong that it diminishes the Forest character of this land to an extent which warrants excluding it from the NFHA; and
(b) given that this is all Landscape Type 5, the severance caused by the A326 is sufficient to warrant the exclusion of the land north of Totton.
When the previous local plan inspector looked at this issue, the bypass had not been built. It is now in existence, and a clearer impression can be formed of its impact. The Countryside Agency believe that the Forest character of the land north of Totton is still clearly evident, and the A326 does not diminish its quality or detract from its character to a degree which warrants its exclusion from the NFHA. Furthermore, the Countryside Agency's view is that development or road construction within a designated area such as a National Park or an Area of Outstanding Natural Beauty would not in itself be a reason for reviewing the boundary of the designation, unless the impact on the severed area were such that it were no longer of a quality or character which merits its inclusion.
[Note: in the context this comment by the Countryside Agency Members might wish to note that the Inspector's report does not refer to other areas of the NFHA severed from the rest by major roads, e.g. land east of the A326 in the Waterside, and land north of the A36 at West Wellow and Plaitford, although these are not dual carriageways.]
3.26. In respect of the grazing criterion, the Countryside Agency point out that the Inspector has accepted their point that, although the current use of the land for commoners' grazing would not justify inclusion on this criterion alone, some weight should be given to this factor. The Inspector concludes that it 'would be suitable for grazing related to the Forest' (Inspector's report paragraph 5.1.13). This echoes the element of the grazing criterion that refers to land which 'could be suitable to be utilised for grazing relating to the forest'. While there is a general agreement that the land could not be included solely on the basis of this criterion, it is a factor that should not be ignored.
3.28. The Countryside Agency conclude that the Inspector has given insufficient weight to the ways in which the land meets the criteria for including land in the NFHA, and too much weight to the severance caused by the A326.
3.29. The views of the Countryside Agency as set out in points ii to iv of paragraph 3.26 above do reflect planning considerations and are material to the Committee's decision. However, it must be emphasised that Members must also take into account all the representations received, and attention is directed to all the objections and representations in support listed at pages 6 to 10 to Annex 2. It is essential that the decision on this matter is taken on the basis of its planning merits, rather than the views of any one representation, however strongly expressed.
3.30.If Members are minded to adhere to their previous decision in respect of the Inspector's recommendation, clear planning reasons must be given for this decision. It is clear from the representations received that the previous reasons given are not adequate."
- The report then said:
"3.30 If Members are minded to adhere to their previous decision in respect of the Inspector's recommendation, clear planning reasons must be given for this decision. It is clear from the representations received that the previous reasons given are not adequate."
- It is perfectly clear that the reasons given in January 1999 were legally inadequate. It is also clear that there was no officer recommendation in July as to the decision to be made or as to the strength or quality of the Countryside Agency's reasons. The Officer's view was merely that they represented material planning factors, which is, of course, a necessary but not a sufficient condition for legal adequacy. Mr George drew attention to the language of paragraph 3.20, repeated in the recommendation of "minded to adhere to their previous decision", as suggesting that the Committee were simply casting about for reasons to sustain a decision already taken, rather than proceeding by reasoning to a conclusion.
- The meeting itself, on 7th July 1999, after an introduction, was adjourned as anticipated for a coach visit to the land in question by members and officers, Mr Ashworth among them. Officers advised the members to consider the landscape of the area in question and to compare it with other types of landscape west of the A326. They examined the impact of the bypass from various vantage points. As soon as they returned, the Committee went into a private session excluding the press and public. The minutes record that this was because the Committee needed to hear advice involving likely disclosure of exempt information. They continue:
"The Committee received legal advice on the process they should follow in considering whether land to the north of Totton should be included in the New Forest Heritage Area. Their attention was drawn to the need to approach this matter in an open-minded and objective manner; to carefully evaluate the Inspector's views and recommendations; and to look at the planning merits only of the question of whether or not this land should be included in the Heritage Area."
- During the discussion, Councillor Harrison produced, already prepared on acetate, a detailed and reasoned resolution rejecting the Inspector's recommendation. There is no evidence as to when the acetate was prepared, but in the light of the evidence of Mr Humphrey for Bovis, provided on 23rd May 2000 and never answered, as to the timing of events, I accept as realistic the inference which he drew that the acetate was prepared at least in advance of the site visit. I for my part do not see how it could have been prepared during the introductory phase of the meeting. I infer that the preparation of the resolution preceded the meeting, including the reference which it included to members having visited the site. The acetate runs to two pages of type. It contains a proposed resolution (1) that the January 1999 reasons are inadequate; and (2) that the Inspector's recommendation be rejected for reasons which largely reflect paragraphs (ii) to (iv) of the reasons attributed to the Countryside Agency in the Officer's report, together with most of the parenthetical note. The minutes recording the debate note the value attributed by members to their site visit in examining the quality of the landscape and the continuity of linkages over the A326. They state:
"Members expressed the view that the coach tour earlier in the morning had been invaluable in allowing them to evaluate the merits of whether or not this land should be included in the New Forest Heritage Area. They had noted the degree to which the land east of the A326 was visually linked to the land to the west of the road, as well as the question of whether this land was of a landscape type and of sufficient quality to warrant inclusion.
The Committee concurred with the Inspector's view that this land was properly classified as Type 5 landscape (Ancient Forest Farmland), which qualified for inclusion within the Heritage Area. The Committee then considered the Inspector's view that, although the land qualified on landscape grounds, it had effectively been severed from the Heritage area by the A326, which was a dual carriageway in this location. The Committee had noted the continuity of field patterns between this land and the land to the west of the A326, and that, when viewed from surrounding vantage points, the road was barely visible and caused no break in the continuity. It was also noted that elsewhere along the A326, the road had not been deemed to sever land to the east from the New Forest Heritage Area.
The Committee went on to consider whether the construction of the A326 had damaged the quality of the land to the east of the road. It was noted that the spoil from the construction had been deposited to the west of the new road and indeed was now totally indistinguishable within the landscape. Members were satisfied that, when passing through the landscape in question, for example along Pauletts Lane, the landscape was totally typical of Ancient Forest farmlands elsewhere in the Heritage Area."
- The total discussion, including the coach trip and closed session, lasted three hours, at the end of which, by seventeen votes to none, the Committee rejected the Inspector's recommendation. Councillor Drake did not vote because the debate was so clear cut. The reasons given in the actual resolution to reject the Inspector's recommendation followed Councillor Harrison's acetate resolution. The reasons given read:
"(i) Having further considered and visited the New Forest Heritage Area north and west of Totton and specifically the land north of Totton and east of the Totton Western Bypass the Council holds to the view that this land meets the landscape criterion for inclusion of land in the New Forest Heritage Area. The Inspector accepts without comment Land Use Consultants' classification of the area as Landscape Type 5, Ancient Forest farmland, which is a landscape type suitable for inclusion in the New Forest Heritage Area, and he accepts that in terms of its landscape and wooded character, it demonstrates a measure of continuity with the New Forest Heritage Area to the west (Inspector's report paragraph 5.1.15). In his paragraph 5.1.14, he goes so far as to refer to the road as an alien feature 'within' the New Forest landscape, which is to accept that the land north of Totton forms part of this landscape. In referring to the previous local plan Inspector's conclusions in respect of the wider area then proposed for inclusion in the New Forest Heritage Area, he points out that the land north of Totton shares many characteristics of land west and south of Totton which is included in the New Forest Heritage Area (inspector's report paragraph 5.1.14).
(ii)In terms of the boundary criterion for including land in the New Forest Heritage Area, the Council agrees with the Inspector's view that either the A326 of the A36 would form a satisfactory physical feature for demarcating the New Forest Heritage Area (Inspector's report paragraph 5.1.14); and [the council] can see no reason for preferring the A326 to the A36.
(iii) The Inspector concludes that collectively, the linkages with the New Forest Heritage Area are not of sufficient force to justify including this land within the New Forest Heritage Area. The determining factor in his argument seems to be the impact of the A326 Totton Western Bypass. The Council consider that the Inspector has focused on linkages across the road, whereas he should have been considering whether:
(a) the disruption/disturbance caused by the A326 to the land north of Totton is so strong that it diminishes the Forest character of this land to an extent which warrants excluding it from the New Forest Heritage Area; and
(b) given that this is all Landscape Type 5, the severance caused by the A326 is sufficient to warrant the exclusion of the land north of Totton.
When the previous local plan Inspector looked at this issue, the bypass had not been built. It is now in existence, and a clearer impression can be formed of its impact.
The Forest character of the land north of Totton is still clearly evident. The A326 does not diminish its quality or detract from its character to a degree that warrants its exclusion from the New Forest Heritage Area.
In respect of (b) above, the Countryside Agency's view is that development or road construction within a designated area such as a National Park or an area of Outstanding Natural Beauty would not in itself be a reason for reviewing the boundary of the designation, unless the impact on the severed area were such that it were no longer of a quality or character which merits its inclusion. In this context the Council note that other land within the New Forest Heritage Area is properly designated through the local plan while being severed by major roads (e.g. land east of the A326 in the Waterside, and land north of the A36 at West Wellow and Plaitford)."
- Councillor Drake said in her witness statement that she did consider the matter afresh "and I honestly believed with an open mind. It was also my impression from the lengthy discussions and the site visit that the other members also did so..."
"... Members formed the view that neither of the local plan inspectors who had considered this issue had fully appreciated the forest character of this land and that, despite the impact of the A326, it was indistinguishable from land of that landscape type in the Heritage Area to the west of that road."
- Mr Ashworth's witness statement states he had the same impression of members' approach. Neither witness referred then or subsequently to the production by Councillor Harrison of his acetate, nor was he excluded from those affording to them an impression of open-mindedness. An application to cross-examine those two witnesses in these proceedings was made to Mr George Bartlett QC, sitting as a Deputy High Court Judge. The application was successfully opposed by New Forest District Council because there were no sufficiently exceptional circumstances to warrant it. An allegation of "a closed mind" was said not to raise a different legal principle from a failure rationally to consider only the material considerations or a failure to give legally adequate reasons. The application preceded the allegations of apparent bias based on Councillor Drake's membership of the NFC.
- The next stage in the statutory process was that public responses were to be invited on those reasons and proposed modifications before they became final and the Plan adopted.
- On 3rd August 1999 the New Forest Committee met. Councillor Drake and the Council's Director of Planning were present. So too was the Countryside Commission's Regional Director. They resolved to inform the District Council that its new reasoning for rejecting the Inspector's recommendation be supported. The NFC commented that its officer had "always held the view that this land satisfies the natural beauty criterion for inclusion..."
- On 19th August 1999 Bovis wrote to the District Council objecting to its reasons. It said that no new information was referred to; the two Inspectors had recommended the exclusion of this land from the Heritage Area, and that the Inspector had already considered the Countryside Commission's views at the Inquiry. It was insufficient just to refer to evidence already given.
- On 31st August 1999 the Secretary of State wrote:
"He considers that the reasons advanced by the Council do not provide any additional information which was not available and considered by the Inspector at the Inquiry and he remains concerned about the adequacy of the statement of reasons."
- However, he did not intend to make any further form of intervention, for example objection or direction, so as to avoid holding up the adoption of the Plan.
- On 29th September 1999 the District Council's Planning and Transportation Committee met to consider the representations on the revised reasons given for rejecting the Inspector's recommendation. The same general approach to consideration of objections as had been advised in July 1999 was repeated. The representations in support from the NFC and Countryside Agency were briefly mentioned. The objecting representations were summarised and the Secretary of State's views referred to. The report responded to them as follows:
"3.9In response, the following points are made:
*the Council's revised reasons do not present new evidence but rather explain the planning grounds for disagreeing the Inspector's reasoning and conclusions;
*it is well known that the New Forest District (East) Local Plan Inspector also recommended the use of the (then planned but not implemented) A326 as a boundary for the NFHA. However, he was considering the much larger area then proposed for inclusion in the NFHA, extending east of the proposed line of the A326 to Hillstreet and north to the District boundary. He did recognise a difference in character within the larger area. Having regard to the varying character, the Council subsequently identified the land south of the A36 Salisbury Road as being appropriate for inclusion in the NFHA;
*it remains the view of this Council that the land north of Totton is properly identified as Landscape Type 5, and that the land is very similar in character to other such areas west of the A326 and indeed elsewhere in the Forest. This character is not diminished by the presence of the A326, to a degree that warrants its exclusion from the NFHA, and the area therefore satisfies the landscape criterion for inclusion in the NFHA [see Annex 1, Minute (c)]."
- The Committee resolved that no further modifications be made and that the Local Plan should proceed to adoption.
- On 10th November 1999 the District Council published its Notice of Intention to adopt the plan, and one month later these proceedings were commenced, subsequently amended to bring in human rights arguments.
The Statutory Framework
- Section 287 of the Town and Country Planning Act provides:
"287.--(1)If any person aggrieved by a ... local plan ... desires to question the validity of the plan... on the ground---
(a) that it is not within the powers conferred by Part II, or
(b) that any requirement of that Part or of any regulations made under it has not been complied with in relation to the approval or adoption of the plan,...
he may make an application to the High Court under this section.
(2) On any application under this section the High Court---
(b) if satisfied that the plan... is wholly or to any extent outside the powers conferred by Part II, or that the interests of the applicant have been substantially prejudiced by the failure to comply with any requirement of that Part or of any regulations made under it, may wholly or in part quash the plan..."
- The relevant regulations for these purposes are the Town and Country Planning (Development Plan) Regulations 1991, SI No 2794. Their subsequent replacement in 1999 is immaterial.
- Regulation 16(1) imposes the duty to give reasons, which have to be legally adequate, for the decisions which the local planning authority reaches after considering the report of an inspector holding an inquiry into objections made to a local plan. It reads:
"16(1) Where a local planning authority cause a local inquiry or other hearing to be held for a purpose mentioned in regulation 14(1)..., the authority shall, after considering the report of the person holding the inquiry, ... prepare a statement of-
(a) the decisions they have reached in the light of the report and any recommendations contained in the report; and
(b) the reasons for those decisions."
- Regulation 16(4) requires notice to be given of recommendations which the local planning authority does not intend to accept:
"16(4) Where the report of the person holding the inquiry... contains recommendations that the statutory plan proposals should be modified in a manner specified in the report and the local planning authority intend not to accept one or more of those recommendations--
(a) the authority shall make a list of the recommendations that they do not intend to accept available for inspection from the date on which, and at the places at which, the report is made available for inspection;
(b) the notice given... shall record the authority's intention not to accept those recommendations and invite objections and representations to be made in respect of that intention within six weeks of the date on which the notice is first published in a local newspaper;
(d) where a local inquiry or other hearing is held to consider [one or more of] the objections made to that intention, regulation 14 shall apply,... and this regulation shall apply following such a local inquiry or other hearing... as it applies to a local inquiry or other hearing... mentioned in paragraph (1); and
(e) where objections have been made to that intention in accordance with these regulations and not withdrawn and the local planning authority do not cause a local inquiry or other hearing... to be held, regulation 17 shall apply to the consideration of the objections as it applies to the consideration of objections to statutory plan proposals."
- Accordingly, the Council here in effect gave its reasons on 7th July 1999 and later gave notice that for those reasons it did not intend to accept the Inspector's recommendation.
- Regulation 17(1) then applies to a local planning authority's consideration of objections to that intention. This applied to the decision on 29th September 1999. It provides:
"17.--(1) Where objections have been made to statutory plan proposals in accordance with these regulations and not withdrawn and the local planning authority do not cause a local inquiry or other hearing or examination in public to be held, the authority shall prepare a statement of their decisions as respects all the objections and their reasons for each decision."
The Reasons Challenge
- I shall deal first of all with the challenge to the legal adequacy of the reasons given for the rejecting of the Inspector's recommendation. This turns on the conclusions of 29th September 1999 meeting read in the light of the resolution of 7th July 1999.
- Mr George on behalf of Bovis submitted that a detailed analysis of the relevant landscape criteria had been presented to the Inspector by his clients and by the District Council, including the Countryside Commission. This was not a case in which the Inspector reached his conclusions as a simple value judgment, and his careful conclusions could not adequately be rejected on the basis of a coach trip, plus the reasons actually provided. Those failed to grapple with the substantial points upon which the Inspector based his conclusions. In particular, the reasons given failed to grapple with the Inspector's conclusions: first, that the land was not of sufficient beauty in its own right to warrant inclusion in the Heritage Area; second, that the mere classification of the land as Landscape Type 5 did not justify its inclusion in the Heritage Area; third, that relevant linkages were absent or weak; fourth, that the relevant criteria were not analysed; fifth, that the Inspector's references to the significance of urban fringe characteristics and to the relative strength of the A326 and A36 as boundaries to the Heritage Area were misunderstood; sixth, the Council misunderstood the lesser significance of other roads referred to by officers as potential comparators for the A326; seventh, the Council wrongly approached the question as if the onus were on Bovis to justify the removal of the land from the Heritage Area, whereas it was for the Council to justify its inclusion within the Heritage Area as it had not previously been so shown in any statutory plan, and because particularly stringent development control policies would apply to it for the very long term.
- Mr George also submitted that the Council had failed to consider the dilution of the quality standards to be expected of national park or equivalent landscapes which would follow the inclusion within the Heritage Area of the land in question. The strength of the applicable development control policies meant that land should not be unnecessarily so burdened or its development prospects so blighted. The Council's approach was also criticised as failing to reflect the detailed boundary criterion of including the minimum buffer land beyond the open forest. Mr George set his submissions in the factual context of the Council's views having been twice rejected by independent Inspectors, of the Council then having undeniably come up with plainly inadequate reasons for rejecting the recommendation, which it then purported to put right, but in reliance on the Countryside Agency whose views had been rejected by the Inspector and in circumstances where there was at least an undesirable closeness of contact between a Council supporter (the NFC) and the Council itself.
- Mr Harwood for the Council submitted that the structure of Local Plan decision making had accorded the ultimate say, in the absence of intervention by the Secretary of State, to the local authority. It was entitled to disagree with the Inspector. This was fundamentally an issue as to the quality of the landscape and the impact on it of the new road, which members had visited so as to make their own assessment. The Council's view was not said to be irrational. Indeed a body of respected opinion supported it, not least of which was the Countryside Agency. The Council were simply seeking to include land within the Heritage Area which was of a type which LUC had recommended was suitable for inclusion, but this was not the sole basis for the Council's view. The particular area had not been considered separately by the first Local Plan Inspector. The Council explained adequately why it did not accept the Inspector's appraisal of the intrinsic qualities of the site. The linkages were specifically considered. The consideration of the Inspector's report inevitably entailed consideration of the relevant criteria, but he was looking, like the Council, at the collective force of the linkages. There was no "visual and historic links" criterion, nor one related to a "sense of being in the forest". The Council did not misattribute a view to the Inspector that there was no reason to prefer the A326 to the A36 as a boundary. That was a misreading of the resolution. Plainly the Inspector gave reasons for his preference, but the Council disagreed with them. It was insufficient to be able to criticise reasons as selective. The test was whether they had grappled with the Inspector's essential points. The Committee would have been well aware that the other roads referred to in the Heritage Area as relevant to severance were not dual carriageways, as the A326 was (although there are in fact two other dual carriageways through the Heritage Area).
- The reliance by Bovis on the risk of the dilution of the quality of the land was misplaced. It was not a point taken up by the Inspector. In substance, in my judgment, this is not a separate point, but one which stands or falls entirely with the contentious judgment about the quality of the land in question. Mr Harwood submitted that the argument over "onus" was misplaced. The Committee were well aware of the history of the evolution of the Heritage Area Boundary before and after the Local Plan process, from the Committee report.
- I shall deal first of all with the relevant principles. The reasons given for the decision to reject the Inspector's recommendation must be "proper, intelligible and adequate". Improper reasons reveal a flaw in the decision-making process. Unintelligible reasons are equivalent to the giving of no reasons at all. Inadequate reasons fail to deal with the substantial points raised or fail to enable the reader to know what conclusion the decision maker has reached on the principal controversial issues (Save Britain's Heritage v Number 1 Poultry Ltd  1 WLR 153 at 167, Lord Bridge).
- The substantial points with which a council has to grapple when rejecting an inspector's recommendation are the reasons which he has given for that recommendation; and having given notice of its intention to reject it, its reasons must also grapple with any different and substantial points raised by those objecting to that course of conduct. The mere fact that the council's reasons for rejecting an inspector's recommendation may involve a repetition of the arguments or evidence which he has rejected does not necessarily show that the council has failed to grapple with the substantial points raised. New evidence, changes of circumstance or fresh arguments are not always necessary (see Welsh Development Agency v Carmarthenshire County Council (1990) 80 P&CR 192 CA). It may be easier to conclude that matters of simple judgment have been grappled with by a repetition of argument than that matters of a more factual nature have been (Bainbridge v Hambleton District Council (2000) 80 P&CR 61). It is, however, necessary that the council's reasoning, whether constituted by repetition or new material, focus on the substantial points raised, rather than simply on why the council considers that, for example, land should or should not be allocated in a particular way. Those latter reasons may or may not suffice to grapple with the substantial points raised or the basis of an Inspector's recommendation.
- Although reasons can be terse, the degree of particularity required of the reasons depends on the circumstances of the case. These include the degree of detail in the Inspector's conclusions or in the other representations, the nature of the issues raised and the basis for the rejection of the Inspector's conclusions, including any new points that have arisen. It is not always possible, let alone necessary, to devise or express elaborate reasoning for all planning judgments. However, the duty to provide adequate reasons is particularly acute where the council is proposing to reject the recommendation of the independent scrutineer in favour of the view which it has previously promoted and had rejected (Peel Investments (North) Ltd v Council of the Metropolitan Borough of Bury (1999) PLCR 307, CA).
- The reasons given by the Inspector here are not short. They are carefully considered and set out at length, after hearing substantial evidence, cross-examination and argument on both sides. He visited the area in question. He was also dealing with an earlier Inspector's report with which he was in agreement. Moreover, although it was submitted by Mr Harwood that the beauty of the landscape was a pure value judgment, the questions of whether land fitted the relevant criteria and where the Heritage Area boundary was to be drawn, were not to be answered as a simple matter of impression on either the Council's, or the New Forest Committee's or the Countryside Agency's own approach. The District Council and the Inspector relied upon the structured and analytical criteria-based approach in the LUC report, which endeavours to provide a measure of objectivity and consistency in the assessment of landscape quality, of New Forest character and as to where boundaries should be drawn. The issues involved fully warranted their description as complex in the Avon Valley case to which I have already referred. This was not a case in which the District Council asserted that there were any new arguments or any changes of circumstance or any fresh evidence. It was repeating the points which it had already made and which the Inspector had rejected. It was doing so in circumstances where, on any view, it had actively promoted the inclusion of this land in the Heritage Area with the support of the NFC and the Countryside Commission, and where it had expressed strong reservations about the role of the Local Plan process with its objections, public inquiry and independent scrutiny, in determining the limits of the Heritage Area. The Council had already produced one legally inadequate set of reasons for rejecting the Inspector's views.
- The rejection of the Inspector's recommendation in January 1999 had no officer support. The reasoning given in July 1999 was advised by officers to constitute material planning factors, but it was not recommended by officers as sufficiently meritorious in planning terms to warrant the decision to reject the Inspector's recommendation. The origin of the Council's reasoning lies clearly in the Officer's discussion with the Countryside Agency in June 1999 when "clarification" was sought of its views by the Council.
- The Council's reasoning also warrants careful examination because the Council was rejecting the Inspector's reasoning for the second time in circumstances where its support for the inclusion of this land in the NFHA is long-standing, and maintained in the teeth of an earlier Inspector's report and of the Secretary of State's objection to its reasoning.
- The Inspector's reasoning therefore, in my judgment, called for care, particularity and conscientiousness when it was considered in July 1999.
- The Inspector's report does not entirely follow the structure of the criteria which he has accepted as appropriate. Nonetheless, the essential points made by the Inspector with which the Council had to grapple were these. He accepted, in agreement with the Council, that the grazing criterion alone did not justify the inclusion of the land, but that some weight should be given to that factor. He referred to the earlier Inspector's report, which concluded that south of the ridge line there was no sense of "being in the forest" and that it had urban fringe characteristics. The 1998 Inspector then pointed out that that is also true of land west of the A326 and within the Heritage Area; but the significance to him of the A326 was that it provided a firm barrier to the further westward spread of those influences, whilst across the barrier those urban influences already existing did not disrupt the continuity of the New Forest countryside. The A326 was a better boundary than the A36 because it was stronger ecologically and a more invasive road, notwithstanding the anticipated effects of planting.
- He recognised the classification of the landscape as Type 5, but also that it was part of a larger block already excluded from the Heritage Area. He asked whether with the A326 there remained sufficient "historical and visual continuity to justify the retention of the objection land as an integral part of the New Forest". This he concluded was limited. The landscape character, ecological and other linkages were assessed individually, and collectively concluded to be insufficient to justify "including this relatively limited area of land within the Heritage Area". He treated the A326 "as a big consideration in this determination". He agreed with the earlier Inspector's conclusions and also concluded that the land did not have the necessary beauty for inclusion in the New Forest in its own right.
- In summary, neither of the principal LUC criteria were satisfied by the land in question. The impact of the A326 was seen not just as a detailed boundary matter, but as a disruptive influence on the collective force of the range of relevant links, links which were relevant to the judgment of whether this block of Type 5 landscape should be seen as an integral part of the Forest. It is not clear what his view would have been but for the influence of the A326 and its potential boundary role.
- The minutes of the Committee meeting highlight the significance of the coach tour. The members looked at visual links and the degree of visual disruption caused by the A326. This is recorded in the context of the Inspector's view, which is said to be "that although the land qualified on landscape grounds, it had effectively been severed from the Heritage Area by the A326". Accordingly, severance was focused on. I am far from satisfied that that is a fair representation of the Inspector's view, which was rather that the land, although of Landscape Type 5, did not qualify on landscape grounds in respect of which the A326 was a "big", but not the sole, consideration. However, those were not the formal reasons given by the Committee for the rejection of his views and an element of shorthand in the minutes also has to be allowed for.
- I see the process of the Council's reasoning as being that the Inspector found a number of features which supported the Council's view, for example landscape classification, continuity of certain links and characteristics, but then that the Inspector was not justified in preferring the A326 over the A36 as a boundary, and that so far as the impact of that road was concerned, the question should have been whether its effect on the character of the land justified excluding it from the Heritage Area, which it did not, rather than focusing on linkages across the road.
- However, for the reasons which I now set out, I do not consider that the Council did adequately grapple with the Inspector's reasoning. First, paragraph (ii) of the Council's reasoning in its resolution, as elsewhere, fails to recognise that the Inspector rejected this land as satisfying the "outstanding natural beauty" criterion. It cobbles together references which appear to suggest that he saw rather more merit in the land than he in fact did. True it is that the Inspector accepted the landscape as being of Type 5, but he made the point in paragraph 5.1.15 that that by itself does not meet the first criterion because, for example, of the similarly classified land in the wider area to the north east which is not within the Heritage Area. The Council's reasoning does not grapple with that. It appears to regard the Type 5 classification as sufficient of itself to satisfy the criterion, but the Council fails to explain why it rejects the Inspector's clear contrary view, perhaps because it failed to grasp it.
- Second, paragraph (ii) then distorts the Inspector's view on linkages, the road and characteristics west of the A326 so as to reinforce the impression which it gives of the Inspector's view as more supportive of the inclusion of the land than in fact it was. True it is that the Inspector referred to "some measure of continuity in landscape and wooded character", but he went on to point out that heathland and ecological links were weak, ancient woodland links did not exist and commoning linkages were not strong. This point goes to whether the Council truly grasped the overall weakness of its case as he assessed it.
- It is insufficient for the Council, in response in this court, to refer to the fact that in paragraph (iv) the Council appears to deal with his view on linkages collectively by saying that he asks the wrong question. In paragraph (ii) the Council is laying the groundwork for its later view by cherry picking those parts of the Inspector's Report which help it. They ignore the references to linkages that are unhelpful.
- I am reinforced in my view of what the Council was doing by its assertion that the Inspector accepted that the land north of Totton was part of the New Forest landscape because he had referred to the A326 as an alien feature "within" the landscape. It is perfectly clear throughout his report that the Inspector did not regard the land as part of the New Forest landscape. Whilst the Inspector puts the word "within" in apostrophes, its effect in his sentence "an alien feature 'within' the New Forest landscape" is to cast doubt on whether it is 'within', bearing in mind that that is the issue to be resolved. The way in which the Council expresses it serves to emphasise 'within' as if it were a word reflecting a positive conclusion supportive of the Council's approach. This distortion, a failure to understand or grapple with the Inspector's true approach, is apparent again in the last sentence of paragraph (ii). This refers to the Inspector pointing out that the land in question "shares many characteristics" with land to the west of the A326 and within the Heritage Area. However, the shared characteristics in the Inspector's mind were not "forest" or landscape characteristics, but the reverse: urban fringe characteristics. The Inspector's real point was that the more westerly A326 was a boundary to the westward spread of such undesirable influences, so that the area west of the A326 would better retain its sense of continuity with the New Forest. This urban fringe influence is obviously also a factor not created by the A326, but which is very relevant to the intrinsic quality of the land in question as a possible part of the New Forest.
- All in all paragraph (ii) of the Council's reasoning fails to recognise and grapple with the Inspector's true views. It takes, in large part inaccurately, seemingly favourable comments from the Inspector, and betrays a wholesale failure to understand and deal with his views as to the intrinsic weakness of the land in question and the weakness of its linkages over the A326.
- Thirdly, paragraph (iii) of the Council's reasoning sets out its view that there is no reason to prefer the A326 to the A36 as a boundary viewed simply as a physical demarcation line. Whilst the Inspector recognises that either road would be a satisfactory physical demarcation line, the Council simply ignores the reasons given by the Inspector in paragraph 5.1.14 for preferring the A326 as a boundary, based on the LUC detailed boundary criteria. The Inspector refers to the A326 as "a stronger barrier ecologically" and to it being "much more invasive in the local topography". The Council has failed to provide any reason for its rejection of his view on the detailed boundary criteria. This cannot be answered simply by its view on the intrinsic merits of the land as Landscape Type 5, without confusing two distinct but related strands in the Inspector's analysis.
- Fourthly, paragraph (iii) of the Council's reasoning sets out the approach which it said should have been adopted, namely whether the impact of the A326 was such as to warrant excluding the land from the Heritage Area. The reasons do not make clear whether the Inspector's assessment of the linkages in paragraph 5.1.15 of his report, individually or cumulatively, was accepted or rejected. The linkages are clearly relevant to the intrinsic quality of the land and to the drawing of the boundary as a sensible line in itself. This substantial issue is not directly grappled with but is sidestepped through the criticism which then follows of the approach adopted by the Inspector. Criticism of the approach can in principle constitute an adequate reason for rejecting the conclusions to which that criticised approach leads, but that depends on the adequacy of the criticism.
- However, the Council says that the impact of the A326 is insufficient to warrant the exclusion of the land from the Heritage Area. This use of the expression of "warranting exclusion" is quite deliberate. It is not the same to the Council as "warranting not including" the land. Of course sometimes "exclusion", "retention" and "not including" are used interchangeably in planning (see, for example, paragraph 5.1.15 of the Inspector's report), but not so in the Council's reasoning. Its stance is that the land is worthy of being in and should already be seen as part of the New Forest. The Inspector should then have asked whether the impact of the road warranted it being taken out.
- This distinct approach is clear from the comparison that can be drawn with the Countryside Agency's approach in the Council's letter to reviewing the boundary of an already designated area. This is a different approach from that put forward in Mr Coleman's proof for the Countryside Commission on behalf of the Council to the Inspector and also from that recommended to members in legal advice as recorded in the minutes, which was to examine whether the land should be included in the Heritage Area.
- There may very well be good reason for a different approach to the initial drawing of a boundary and to its subsequent change. The Council's approach is misconceived. It explicitly followed the latter approach and not the former. It may have been attached to earlier non-statutory Heritage Area boundary designations, but the question for it and the Inspector was whether the Heritage Area boundary, being drawn for the first time, should include this land and follow one road line or another.
- Additionally the Inspector's approach was to examine the land on its merits, after debate and untrammelled by non-statutory designations, so as to fix the boundary for the first time. The Council simply does not address the reasons for the Inspector's approach to drawing boundaries for the first time. The Council disagrees with this approach but offers no reasons for preferring its different approach, which involves the assumption that the land is already part of the New Forest Heritage Area. It is not easy to see what those reasons could be. It follows that the Council has, in effect, also failed to grapple with the significance of the Inspector's views on linkages for how the boundaries should be set for the first time.
- I do not consider that it can be said that in reality all the Council was doing was to disagree with the Inspector's assessment of the impact of the A326 on linkages and on the landscape quality of the land in question, a key consideration in his conclusions. First, there was rather more to the Inspector's reasoning which would have needed addressing if that were the approach. Second, that is not in fact what the Council did. Its reasoning too is more elaborate, drawing on the Inspector's purported views and dealing specifically with the precise boundary line, as well as setting out a different approach as to how the significance of the linkages should be appraised. Third, the Council does not express a view on the Inspector's assessment of linkages other than in the context of applying a different test, "warranting the exclusion of the land", from that applied by the Inspector.
- I have examined the Council's reasoning in some detail for reasons which I have explained, but standing back I am still driven to conclude that, whatever the merits of the Council's chain of reasoning, it has not grappled with the Inspector's reasoning, showing a true and fair understanding of it and then explaining why the essence of that reasoning is rejected through the reasons for its decision. Bovis is clearly prejudiced substantially by that failure. It is not clear whether relevant parts of the Inspector's reasoning were effectively ignored or misunderstood. If the Council had to face up to answering his reasoning, it might come to a different conclusion.
- Mr George submits that the decisions of July, and yet more so those of September 1999, were vitiated by the participation of Councillor Drake because of her membership of the New Forest Committee. Mr Harwood objected to this point being taken as late as it was. I propose to deal with it. It is not a matter upon which any additional evidence could usefully have been called because apparent bias is very much an inference from those facts which were fully in evidence. The Council had ample notification of the point and it was closely related to the long-standing allegation of predetermination.
- Mr George submits that the NFC was a party to the issue to be considered on 7th July and 29th September 1999. It made representations in support of the Council's position on both occasions. Councillor Drake, the Planning and Transportation Committee Chairman, and indeed the Director of Planning, Ms Malcolm, were at that time members of the NFC. Indeed, both were present at the August meeting of the NFC, at which its support for the Council's position was expressed so as to be taken into account when Bovis' objection to the decision of July 1999 was considered in September 1999. Alternatively, this meant that Councillor Drake had an interest which automatically disqualified her from participation following R v Bow Street Metropolitan Stipendiary Magistrates ex parte Pinochet Urgarte No 2  AC 119 at 113. Her participation fell foul of the Gough principle, or rather now the In Re Medicaments and Related Classes of Goods No 2 principle  1 WLR 727 CA: would the fair-minded observer, knowing the background, consider that there was a real danger of bias arising from her membership of the New Forest Committee? Mr George said 'Yes'. In any event he submitted that she ought to have declared a personal non-pecuniary interest before taking part in the meetings, according to the National Code of Local Government Conduct. In my judgment compliance or not with the Code is a relevant factor in judging apparent bias, but it cannot of itself found a legal error so as to vitiate a decision arrived it at in breach of its provisions.
- Mr Harwood submitted that Councillor Drake's participation in the New Forest Committee was a part of her functions as a district councillor. The Local Government Code did not prevent her participation. It was equivalent to membership of a council body which gave rise, on the authorities, neither to disqualification nor to a real danger of bias.
- I do not consider that Councillor Drake was automatically disqualified from participation in the decision-making process. She had no pecuniary interest so as to lead to statutory disqualification under section 94 of the Local Government Act 1972. As I read the decision in Pinochet No 2, automatic disqualification arising from a non-pecuniary interest is peculiar to those exercising judicial functions, which Councillor Drake was not (see, for example, Lord Browne-Wilkinson at page 135D-G). However, if that approach is relevant, Councillor Drake was clearly not herself a party whose cause was the subject matter of decision. She had no pecuniary interest. She herself did not have a personal interest or commitment expressed through, or derived from her membership of the New Forest Committee which could be seen as the equivalent of Lord Hoffmann's active but undisclosed role with Amnesty International's charity arm, a set of circumstances described by Lord Browne-Wilkinson as "exceptional" (page 136D-E). Nor do I see this as equivalent to the close connection with a party to the proceedings which Lord Goff saw Lord Hoffmann as having, so close as to give him an interest in the outcome of the proceedings (138B). She had not so associated herself with a party or its interests, using Lord Hope's language at page 142H. Nor did she have an interest arising from a strong commitment derived from an association with a party, using Lord Hutton's language at page 145C-D. Here interest was not so close.
- I do, however, consider that by the time of the September 1999 meeting, a fair-minded observer, knowing the background, would have considered that there was a real danger of bias from her external interest as a member of the New Forest Committee. First, it is clear that the decisions of a local planning authority are open to review on the basis of the apparent bias of participating councillors (see, for example, R v Secretary of State for the Environment ex parte Kirkstall Valley Campaign Ltd  3 All ER 304, Sedley J).
- Second, the source of the danger has to be a personal external interest. In my judgment an interest as a member of another body is a personal interest, an approach consistent with the approach in paragraphs 12(a) and (b) of the National Code of Local Government Conduct Circular 8/90, issued for the guidance of councillors by the Secretary of State for the Environment under section 31 of the Local Government and Housing Act 1989. It reads:
"In the following circumstances, but only in these circumstances, it can still be appropriate to speak, and in some cases to vote, in spite of the fact that you have declared such a clear and substantial private or personal interest:
(a) if your interest arises in your capacity as a member of a public body, you may speak and vote on matters concerning that body; for this purpose, a public body is one where, under the law governing declarations of pecuniary interests, membership of the body would not constitute an indirect pecuniary interest;
(b) if your interest arises from being appointed by your local authority as their representative on the managing committee, or other governing body, of a charity, voluntary body or other organisation formed for a public purpose (and not for the personal benefit of the members), you may speak and vote on matters concerning that organisation."
- Third, it is not necessarily sufficient to remove the danger, that the external interest should arise from a councillor's appointment in her capacity as a councillor. It depends on the circumstances, including the degree of involvement in the external body, the position of the councillor on the relevant council committee and the nature of the issues.
- Fourth, Mr Harwood relied on the provisions of the Local Government Code, which do not disqualify a councillor with a substantial private interest arising from membership of a public body or from appointment as a councillor to the governing body of an organisation with a public purpose. However, the question is always one for testing in the particular circumstances, as paragraph 12 of the Code makes clear:
"It can still be appropriate to speak and in some cases to vote."
- The associated Guidance on Good Practice, paragraphs 31 and 32, is in the same vein:
"31. The Local Government Ombudsmen believe that councillors should still consider whether in the light of the facts of any such case and in their own particular circumstances it is appropriate to participate.
32. There may be, for example, circumstances where it would be inappropriate for the councillor concerned to take part in voting on the matter, if a council is considering a controversial planning application from a public body of which a councillor is the chairman, the Ombudsman may regard it as improper for that councillor to vote on whether permission should be given. The councillor concerned might in the eyes of the public be seen as too closely committed to the proposal from the public body. Similarly, if it is proposed to enter into some contractual arrangement with a company controlled by the local authority, and particularly if there are competing would-be contractors, it would be inappropriate for a local authority member who is a director of the company controlled by the local authority to take part in the council's consideration, even though the company might be regarded as an organisation for a public purpose. But a Local Government Ombudsman did not criticise members of a district council who were also parish councillors for participating in an application for an entertainments licence for a village hall owned by the parish council."
- Mr Harwood also relied on R v Hereford and Worcester County Council ex parte Wellington Parish Council  JPL 573. Members of the County Council's Gypsy Group, which was comprised of county councillors, promoted a gypsy site and some of them then sat on the County Council's Planning Committee which determined the planning application for the site. This participation was held not to be unlawful because it had not been shown that their minds were closed. The case does not appear to have been decided on the basis of apparent bias one way or the other, but at all events the overlap of functions was always in the one Council.
- In R v Derbyshire County Council ex parte Pool  PLCR 40, the overlap between education and planning functions on an application for planning permission for a school was held on the facts not to give rise to apparent bias, but the test was applied even within the one council. I have some doubts about that case, but it certainly does not assist Mr Harwood in principle here.
- Fifth, in the circumstances of this case, Councillor Drake had participated in a meeting of the New Forest Committee in August 1999, at which it declared its support for the Council's position. She says the vote was unanimous, which suggests she voted. The Committee had also previously supported the Council's position on the Heritage Area when she had been a member of the NFC earlier in the 1990s and again since her reappointment in May 1999.
- This was not a body of incidental importance to the issue. It had been regarded by the Council as the body which ought to be defining the Heritage Area boundary, and indeed in the early 1990s the government had so regarded it. It was an influential body, so much so that at the Inquiry, Mr Ashworth had said that the Council followed its views. It included the Countryside Agency, which gave evidence for the Council, and which in its turn was so influential in devising reasons for the Council to accept as a basis for rejecting the Inspector's views. The Council's Director of Planning attended its meetings as a member.
- Councillor Drake was also not a councillor of incidental importance. She was the Planning and Transportation Committee Chairman, a position which can be regarded as one of real influence in Committee deliberations, even though she did not actually vote in July because the decision was so clear-cut. Events at the meeting in July would have done nothing to assuage the fears that might have arisen in August and September.
- This Committee in September 1999 had to consider Bovis' response to the reasons given by the Council for the rejection of the Inspector's view. It had to do so against the background not just of the previous Council decision, but on the basis that the NFC supported the Council. The Council was pursuing a proposal which had already been influenced by the NFC, rejecting for the third time the recommendation of the second Inspector. These circumstances give all the appearance of a Council being influenced by the NFC, not just through its representations, but also through the Chairman of the Planning and Transportation Committee, who had helped to formulate and had voted on those very NFC views. In my judgment she should not have been present at the September 1999 meeting. Her presence leads to the inference that there was an appearance of bias.
- Whilst the requirement for particular scrupulousness is not a legal principle, where particular scrupulousness is missing it is easier to infer that bias has influenced a decision.
- I do not consider, however, that Councillor Drake's presence at the July meeting, whilst a member of the NFC, but before she had attended any recent meeting at which its stance was settled, gave rise to the anticipation of any real danger of bias. Mere membership of the NFC would not, in my judgment, suffice.
- I recognise that in Hannan v Bradford City Council  2 All ER 690, CA, it was held that the non-attendance of three school governors at a governors' meeting which dismissed a schoolmaster, did not remove the possibility of bias arising from the mere fact of their membership of that body, when they sat as members of the Education Authority's Staff Subcommittee to decide whether the dismissal should be prohibited.
- In so far as that case turns on the "possibility of bias", the Gough-Medicaments test should apply now. It is a matter for judgment in each case on the facts whether the test is satisfied. It is not merely a question of whether there were overlapping Committee memberships. In so far as that case turns on the principle that no man should be a judge in his own cause, I have already dealt with that when considering Pinochet No 2.
- I consider next that the better view of the consequences of the participation of someone whose presence gave the appearance of bias, as with that of Councillor Drake at the September meeting, is that the decision is unlawful, rather than that the decision is lawful if there was a sufficient preponderance of unbiased participants for the effect of the apparently biased councillor's participation to have been eliminated or to be shown to have had no effect upon the actual decision. In so far as such a conclusion is to be drawn as to the effect of a councillor's participation, it becomes, in my judgment, a matter for the Court's discretion whether to grant relief. The question of lawfulness is not whether there was a real danger of bias looking at the body as a whole, but whether there was a real danger of bias from a participant in the decision.
- I have not been referred to any direct authority on the point. Certainly where a participant in a judicial decision is automatically disqualified the whole decision was vitiated as in Pinochet No 2, notwithstanding the unanimous views of the other four participants. In my view that principle applies to decisions reached by a non-judicial body, one of whose members appears to be biased. Decisions of local authorities must be reached by properly constituted bodies. The participation of someone who should not have participated precludes the decision having been made as required by law and it is vitiated, subject only to the exercise of the court's discretion. There appears to be no justification for a distinction between the effect of the participation of those apparently biased and of those with a disqualifying pecuniary interest. The latter vitiates the decision (R v Hendon Rural District Council ex parte Chorley  2 KB 696), although De Smith 5th Ed page 541 refers to a divergence of opinion and also cites an earlier authority. Three biased members out of ten vitiated the decision in Hannan. In the Kirkstall Valley Campaign case Sedley J records, without expressly agreeing to it, though I consider implicitly doing so, an acceptance by Mr Drabble QC for the Secretary of State at page 328A:
"The participation of a single member who is disqualified by bias vitiates the decision."
- It is some indication of the direction of the wind. It accords with my view.
- I would not have exercised my discretion in favour of the District Council on this issue even without the reasons challenge. I recognise the number of councillors who voted the same way, but Councillor Drake was the Chairman, and, I infer influential, in her known views, perhaps more so with newly elected Committee members. The absence of any dissent itself surprised me, in view of the Inspector's recommendations, coupled with the absence of any officer recommendation supporting their rejection. I have also had regard to the participation of Councillor Harrison, whose pre-prepared resolution was accepted. On that ground alone the matter should be considered afresh by a properly constituted committee.
- Mr George submitted that the District Council had shown a mind firmly closed to the merits of the exclusion or non-inclusion of the Land North of Totton in the Heritage Area over a period of many years. He referred to the rejection of the recommendations of two Inspectors, the Council's inadequate reasons for the initial decision to reject the 1998 Inquiry Inspector's conclusions, the rejection of the Secretary of State's concerns at its reasoning twice, the success of Hall Aggregates challenge to its reasoning in the Avon Valley case, which led it "reluctantly" to accept changes, and its persistent support for the New Forest Committee's proposed New Forest Heritage Area. He also relied on the close relationship between Councillor Drake and the NFC, whether or not it gave rise to an independent ground of challenge based on apparent bias. He referred to the way in which the meeting on 7th July 1999 had been conducted, the formulation of the issue as being whether the Committee was indeed to "adhere to its decision", to the origin of the eventual reasons in the discussions with the Countryside Agency and in Councillor Harrison's prepared acetate. Mr Ashworth, who wrote the report, had simply provided reasons to back up the decision which he knew would be reached. There was no more open-mindedness in the September 1999 meeting and no objective setting out of the merits of the Inspector's view, which would have been necessary for the Council to properly considered matters afresh.
- Mr George also relied on the inadequacies of those reasons. They were in any event, he submitted, a sham. The Council had told the Inspector that it followed the NFC. The site visit was a pretence: no useful view could be formed in half an hour. He submitted that the facts here showed a failure to deal with the Inspector's conclusions thoroughly, conscientiously and fairly, and showed a closing of its mind to arguments, stubbornly reiterating an approach which had twice within rejected. The case of Stirk v Bridgnorth District Council (1997) 73 P&CR 439, CA, was relied on as showing the unlawfulness of such an approach.
- Mr Harwood relied upon the changing composition of the Planning and Transportation Committee between January and July 1999 as showing that the latter must inevitably approach matters afresh. He relied upon the witness statements of Mr Ashworth and Councillor Drake, in which they said that matters had been approached with an open mind, as the Committee report and oral advice on the meeting of 7th July 1999 had reminded members. The site visited assisted the consideration of matters afresh. There was nothing sinister in legal advice being taken in the July meeting, and the preparation of a draft resolution by one member in advance for debate at worst showed no more than legitimate predisposition by him. He already had the very full Committee report upon which he could draw. The first Inspector's report did not deal with this land specifically. So the rejection of his wider recommendation shows no predetermination of the issue as to whether the smaller area, now being considered, should be in or out of the NFHA. The approach adopted to that report by the Council had not been challenged. The Council was entitled to disagree with the Inspector, and it had acknowledged the inadequacy of its 1999 January reasons, and accordingly had to consider the matter again. It is a commonplace of the Local Plan system that objections at various stages have to be considered. Councillors have no difficulty in revising their position as material emerges and arguments develop.
- Councillor Drake's and Ms Malcolm's work with the NFC did not prevent consideration being given to the merits of the inclusion or exclusion of the land from the NFHA. They were simply performing duties as a councillor and council officer respectively. The Council did not accept all NFC objections. Overall, submitted Mr Harwood, the evidence fell a long way short of what was necessary to warrant the conclusion that the decision was the product of a closed mind.
- In my judgment a Council acts unlawfully where its decision-making body has predetermined the outcome of the consideration which it is obliged to give to a matter, whether by the delegation of its decision to another body, or by the adoption of an inflexible policy, or as in effect is alleged here, by the closing of its mind to the consideration and weighing of the relevant factors because of a decision already reached or because of a determination to reach a particular decision. It is seen in a corporate determination to adhere to a particular view, regardless of the relevant factors or how they could be weighed. It is to be distinguished from a legitimate predisposition towards a particular point of view. I derive those principles from the Kirkstall Valley Campaign Ltd case to which I have already referred, particularly at page 321G.
- There is obviously an overlap between this requirement and the commonplace requirement to have rational regard to relevant considerations. But, in my judgment, the requirement to avoid predetermination goes further. The further vice of predetermination is that the very process of democratic decision making, weighing and balancing relevant factors and taking account of any other viewpoints, which may justify a different balance, is evaded. Even if all the considerations have passed through the predetermined mind, the weighing and balancing of them will not have been undertaken in the manner required. Additionally, where a view has been predetermined, the reasons given may support that view without actually being the true reasons. The decision-making process will not then have proceeded from reasoning to decision, but in the reverse order. In those circumstances, the reasons given would not be true reasons but a sham.
- In my judgment the sequence of steps and the accumulation of events here shows predetermination and a closed mind, rather than just a strong disposition to include the land within the NFHA.
- Of course certain factors taken by themselves point away from predetermination and some can indeed be seen in a less unfavourable light. Each individual component may have some individual explanation satisfactory by itself. But it is important in examining this issue to look at the whole picture. Examining the whole picture and the crucial components of the decision, which are the officers' reports and the reasons given, and the way in which matters have been approached over the years, I have been driven reluctantly to reach the conclusion that this matter was dealt with by the Council with a closed mind.
- Those factors which can be seen as telling in favour of the Council include the fact that the first Inspector's rejected report was not dealing explicitly with this land, and indeed the Inspector's recommendations in relation to that wider area were largely accepted. However, that Inspector's report did cover the whole land and did not suggest that a distinction could be drawn between the wider area and the area now in contention. I also bear in mind the reluctance of the Council to accept recommendations in relation to the New Forest Heritage Area which it disagreed with, as exemplified by the Hall Aggregates case. I accept that the Council put forward at the Local Plan Inquiry professional evidence and a rational case in support of its view. But the important point is that that was, for rational and explicit reasons, rejected by an Inspector, and this was a view that was being rejected by the Inspector for the second time. I recognise that the Council acted responsibly in reconsidering its inadequate January reasoning. Such a body then has to come up with fresh reasoning, as it would do if the decision had been quashed in January 1999. I recognise also that the Officer's report and oral advice of the Committee required the Councillors to be open minded. It is also right that the Council has not always followed the recommendations of the New Forest Committee in all respects following the 1998 Inquiry. The coach trip would indeed have been of assistance, and I accept that there is weight to be attached to the fact that over half the Committee were new members and that there was a long debate. However, I cannot but help look at those factors in the light of the whole picture of events and the pattern which they, to my mind, clearly reveal.
- Critically, first, this was the rejection of the results of independent scrutiny of this land by separate Inspectors for a second time. Indeed, it is to be borne in mind that on three occasions in relation to the second report the view of the inspector was rejected. The first Inspector's recommendations clearly related to the whole of the land, without drawing any distinction between parts of it and without affording any basis for the Council to suppose that his discussion of land south of the ridge line, warranted any conclusion other than that he had recommended its exclusion from the New Forest Heritage Area in so far as it lay between the A326 and the A36. The rejection of the two Inspector recommendations was specifically objected to by the Secretary of State on the grounds of the inadequate basis that the local authority had provided for its decision. The rejection of the Inspector's recommendation was not at any stage supported by any professional officer, neither in January 1999 nor in July 1999. All that the officers did was to point out that certain reasoning contained material planning considerations.
- Secondly, the approach that was followed here is all of a piece with the evidence that was given by Mr Ashworth to the Local Plan Inquiry about the Council following the views of the New Forest Committee. This was no accident: the New Forest Committee was seen as having a very significant role in setting the New Forest Heritage Area boundary.
- Thirdly, there follows a sequence of inadequate reasoning. That in January was wholly inadequate and ought to have been obviously so to Councillors applying their mind to the duties which were cast upon them. For the reasons which I have given, that in July was also inadequate. What concerns me, in particular about the reasoning in July, is that the distortions of the Inspector's views are quite clear to anybody who reads that Inspector's recommendation carefully.
- Fourthly, as I have said, there was no report which spelt out or commended the Inspector's approach or recommended an alternative planning analysis. The reports appear to suppose that the officers actually expected a particular outcome. I regard the language of "if the Council is minded to adhere to its previous decision" as suggesting that the Committee was casting about with professional help for some reasons which might pass muster so as to avoid a challenge in a court of law.
- Fifthly, the references to open-mindedness in the reports and to the coach trip are, in my judgment, undermined by the references both to "minded to adhere to the previous decision" and to the inadequacy of the reasoning to which I have already made reference.
- Sixthly, although half and more of the Committee were new members and they went on a coach trip, the reasons which they gave for rejecting the Inspector's recommendation did not turn on the impression of the road or of the trip. They accepted the pre-prepared acetate resolution from one councillor, which in a number of respects involved much more detailed reasoning, and possibly at parts contradictory reasoning, from that which can be seen in the minutes. I find it surprising, if it is said that the new Councillors were approaching the matter in an open-minded way and that the trip was significant for all Councillors, that from an open-minded Committee not one Councillor could be found in July or September to agree with the views of two independent Inspectors especially in circumstances where no officer had recommended the rejection of those views. That to my mind undermines significantly the weight which it was said should be given to the fact that new members could approach matters with a fresh mind, or that the trip could be helpful. They appeared to make very little use of it in their reasoning.
- Seventhly, Councillor Harrison had prepared the acetate resolution and had already made his mind up. Councillor Drake had connections, which I have described, with the New Forest Committee. Those two factors also tell against the value of new members bringing a fresh mind to bear; and their adoption of that acetate reasoning unvaried after debate also undermines the role of the coach trip and the debate as showing that they approached matters with a fresh mind.
- Eighthly, I do not give weight to the assertions of open-mindedness in Councillor Drake's and Mr Ashworth's witness statement. They were unwilling to be cross-examined on them. But, more importantly, neither in them nor subsequently did they refer to the production by Councillor Harrison of his acetate resolution, which is a clear pointer to predetermination, nor did they exclude him from their comments about open-mindedness. Although not all the Councillors may have been as closed-minded as Councillor Harrison, to regard Councillor Harrison as one who was open-minded involves a very odd view of open-mindedness. The general assertions in the witness statements as to open-mindedness, when there are clear contrary factors at least to be considered, means that the general comments can be given no weight at all. To be given weight in such circumstances, the evidence would have to go beyond the generality and explain what other indicators there might be from which the conclusion could be drawn that the view of the maker of the statement was correct.
- Accordingly this decision also falls to be quashed because the Council did not consider the matter with an open mind, but predetermined its decision.
- Accordingly, for the reasons which I have given, the New Forest District Local Plan is quashed to the extent that it includes the Land North of Totton, that is to say east of the A326 and west of the A36, within the New Forest Heritage Area on the Proposals Map.
- I propose now to deal with the domestic law issues which arise in the Alfred McAlpine Ltd and Swale Borough Council case, before turning to deal with the Human Rights Act arguments in both cases, which very largely overlapped and can most conveniently be dealt with together.
- This is also a section 287 Town and Country Planning Act 1990 challenge by which Alfred McAlpine Developments Ltd seeks to quash those parts of the Swale Borough Local Plan which relate first to an area known as Stones Farm, in respect of which McAlpines holds an option, which was not allocated in the Local Plan for housing, nor was it allocated as a reserve site for housing, contrary to the Inspector's recommendation; and second, to a proposed new road, the Northern Distributor Road ('NDR') both at Sittingbourne in Kent.
- Following objections to the Deposit Draft of the Swale Borough Local Plan which were considered at a public local Inquiry by an Inspector, the Inspector recommended, first, that Stones Farm should be allocated for housing as a reserve site in case nearby land known as East Hall Farm was not developed early or quickly enough in the Plan period, and second that the route for the NDR should be shown on the Local Plan and shown following a particular alignment south of the London to Canterbury railway line. Swale Borough Council rejected those recommendations. McAlpines challenges its reasons for so doing because it says that they were legally inadequate in dealing with the Inspector's recommendations, McAlpines also challenges the decision of the Borough Council not to hold a further inquiry into proposed modifications to the Local Plan; it is also said that the refusal of the Council to accept the Inspector's recommendations violated McAlpines' rights under the Human Rights Act 1998 because the statutory procedure which permits the local planning authority as judge in its own cause to reject the recommendations of the Inspector is incompatible with McAlpines' human rights under the European Convention on Human Rights.
- Stones Farm is a site of some 11 hectares adjacent to the edge of Sittingbourne between the A2 to the south and the main London to Canterbury railway line to the north. To the immediate north of the railway line is the 38 hectare site of East Hall Farm. The proposed NDR would link at the north into the Milton and Kelmsley Distributor Road ('MKDR'), which is yet to be constructed, and would then proceed south crossing the Milton Creek, a navigable waterway, before crossing the London to Canterbury railway line to join the A2 east of Sittingbourne, either to the east or west of the settlement of Bapchild. This road would make possible the release of housing and employment sites from which the road would also draw funding. The MKDR, funded in the same way, would complete the link between the NDR and the A249 dual carriageway to the north west of Sittingbourne. This road network, when completed, would provide a bypass around Sittingbourne, relieving the A23 through its centre and releasing land for employment and housing development.
- The approach in the Swale Borough Local Plan to the allocation of housing land at Sittingbourne and showing the NDR on the Proposals Map has as its background government regeneration policies for the Thames Gateway. The road and development proposals at Sittingbourne are closely related.
- I turn to the government's policies. Both parties referred to RPG9A, The Thames Gateway Planning Framework in this context:
"6.11.6 Many of the opportunities for regeneration at Sittingbourne will result from the town's good accessibility to the A2 and the M2 via an improved A249. ...
6.11.6 ... In the longer term a northern distributor road will allow development opportunities focusing on damaged land to be brought forward. ... It will be for the development plan to establish the boundaries for these areas, and to bring them forward in a phased manner which is closely linked to improvements to the town's road infrastructure.
6.11.8 In bringing forward proposals through the development plan, opportunities should be sought to fashion a more sustainable arrangement of land uses than is currently seen at Sittingbourne. ... "
- The January 1996 Deposit Draft of the Swale Local Plan referred to the importance of Sittingbourne in the regeneration of north Kent as part of the eastern entrance to The Thames Gateway. Regeneration involved maximising economic activity and employment, whilst at the same time improving the environmental quality of the urban area. The rural environment was of a high quality, with much best and most versatile agricultural land. The major development opportunities, linked to a significant improvement to the strategic highway network, would redress the economic decline. Housing development was set at levels above those necessary for current trends in order to stimulate economic activity in the context of major road infrastructure improvements, which that development in turn would help to fund.
- The Deposit Draft of the Local Plan allocated three major housing sites to meet Structure Plan requirements, of which one was East Hall Farm, with an expected potential of 550 new houses. Of these, 250 were expected to be complete by 2001 and the balance of 300 between 2001 and 2006.
- Stones Farm, which had been allocated for housing in the earlier consultation draft of the plan, was not allocated for housing. It was this allocation, however, which had led McAlpines to become interested in the development site.
- In the Deposit Draft of the Local Plan, paragraph 5.3.56 it said:
"5.3.56. Land is allocated for 550 units to be provided within the Plan period. A first phase of 250 dwellings to the south of East Hall is proposed to be completed in the period to 2001. This should be in association with the construction of part of the Northern Distributor Road from the north, to be agreed with the Borough Council, but which must provide access to the site from the Milton and Kelmsley Distributor Road and from the Eurolink Industrial Park. A second phase to the south, for 300 units, to the year 2006, is also proposed, in associate with a further phase of the road."
- Although the MKDR was shown on the Proposals Map and was referred to in policy, the NDR was not; but it was referred to in the text at some length:
"(f) Northern Distributor Road
5.6.18 Whilst the road proposals described above will greatly enhance the transport environment of Sittingbourne, the limiting factors of an overstretched A2, Milton Creek and the railway will mean that the longer term highway strategy for the town needs to consider a full Northern Distributor Road for the town.
5.6.19. The desirability of a Northern Distributor Road is strong. It would provide an important link between the A2 and A249 and ultimately Sheerness Port without the necessity of traffic passing through Sittingbourne. ... It is recognised in the Transportation Strategy for Sittingbourne that the provision of this route would need to be a private development funded project.
5.6.20 Given its length, and the need to cross the creek and the railway, a considerable amount of development is required to support its construction. The Local Plan provides for housing and economic development at Murston (see Policies B37, H66 and SS7).
5.6.21 Approximately one-third of a bypass for the town could be provided with the completion of Milton and Kelmsley Distributor Road. This will leave the crossing at Milton Creek and a loop to the north east of the town, crossing the main railway line and eventually joining the A2, to be provided. Completion of the full road is not expected in the lifetime of the Local plan
5.6.23 It is expected that the development in North East Sittingbourne shown in the Local Plan will provide the new road from the north west as far as the railway line. The remaining length of road will be provided outside the period covered by this Local Plan."
- McAlpines originally objected to these policies; it contended that Stones Farm should be allocated for 350 houses, instead of a site other than East Hall Farm, and should be so allocated in conjunction with a construction of the link in the NDR between the A2 and the railway line. They and others wanted the Proposals Map to show an indicative alignment for the entire length of the NDR including the link between the A2 and the railway line. By the time McAlpines' objection was heard at the Local Plan Inquiry, a plan had been produced on behalf of objectors including McAlpines, which showed the line which they sought for the NDR joining the A2 west of Bapchild. McAlpines had scaled down the development potential of Stones Farm to 200 houses so as to reflect the environmental constraints in the area, and now sought its allocation because of the potential shortfall which it envisaged arising from the difficulties in implementing the East Hall Farm site on the timescale supposed by the Borough Council. An important argument was that exceptional circumstances here justified releasing land for greenfield development so as to meet Structure Plan requirements. An alternative argument was that Stones Farm should at least be identified as a reserve site linked to other phases of development at Sittingbourne, including the connection of the NDR to the A2.
- The Borough Council's proof at the Inquiry rejected both the allocation of Stones Farm and its reservation as a reserve site, and proposed a different approach in the event of a housing land supply shortfall. It pointed to the problem of the disagreement between Kent County Council and Swale Borough Council as to whether the route of the NDR south of the railway line to join the A2, should run to the east or to the west of Bapchild. It also pointed to their joint concern as to the mechanism whereby development of Stones Farm could be made to provide the railway crossing for the NDR in view of the cost of that crossing, or whereby development of Stones Farm and East Hall Farm could be compelled to assist in funding the expensive Milton Creek crossing, with the risk otherwise that the development would have permanent access only to the A2 or to Castle Road and the A2. Hence the preference for the road and associated development to proceed from the north west rather than from the south.
- The structure of the Local Plan Inspector's report means that there is considerable overlap between the issues of housing, employment and highway structure, as indeed there was on the planning merits, but this causes a certain amount of repetition.
- The Inspector set out his main conclusions in an accompanying letter of 23rd July 1998 as follows:
"9. The identified housing sites, together with the anticipated contribution from windfall sites have the capacity to meet the Structure Plan requirements and guideline figures for each of the Planning Areas. However, taking account of site specific recommendations, I conclude that because of various constraints there is likely to be a shortfall of around 530 dwellings in Sittingbourne, 450 on Sheppey and 20 in Faversham.
10. In the case of Sittingbourne and Faversham Planning Areas it is considered that the allocated sites and sites with planning permission represent the preferred options for development and that consequently it would be inappropriate to identify replacement sites at this stage. However, I consider there is a real possibility that land to the north of Ridham Avenue, Kelmsley, land at East Hall Farm, Murston and land at Abbey Park, Faversham either will not be developed or will not yield the anticipated number of dwellings in the Plan period. As a consequence, I am recommending the identification of reserve sites which would be brought forward in clearly defined circumstances if it becomes evident that this will be necessary. The reserve sites that I am recommending are: Stones Farm for East Hall Farm, Quinton Road for land to the north of Ridham Avenue and Station Road, Teynham for Abbey Park. Whilst the reserve sites should be identified on the Proposals Map they should not be shown within the relevant built-up area boundaries."
- The reserve site approach was therefore not confined to Sittingbourne, nor to East Hall Farm or Stones Farm. On infrastructure, the Inspector said:
"13 As major allocations of the Plan in Sittingbourne rely on the construction of the Northern Distributor Road, I consider that there should be a specific policy in relation to the road and that its line should be shown on the Proposals Map, joining the A2 to the west of Bapchild. The engineering works involved will make the road very expensive and whilst there is a possibility of grant aid it will be primarily developer funded. Although I recognise that it would be preferable to construct the road from the north-west, there should be provision to construct it from the south-east if a contract for the section of the Milton Kelmsley Distributor road, on which it is reliant for connection to the A249, is not in place by a given date. Construction from the south-east would trigger the release of stones farm."
- In later chapters of the Report the Inspector dealt with these issues in more detail. First, he dealt with East Hall Farm:
"18. The highway authority have informally indicated that they would not be opposed to the development of up to 200 dwellings off the access road to the Eurolink employment development in advance of the provision of the NDR. This would enable a start to be made on the East Hall Farm site within the first part of the remaining Plan period.
19. I would accept that there is considerable uncertainty associated with the provision of the NDR and the M&KDR. However it is concluded elsewhere (5.6.6) that the complete route between the A249 and Bapchild should be shown on the Proposals Map. It is also recommended that whilst the preferred option would be to construct the NDR from the north-west, the Plan should introduce flexibility by allowing for construction from the south-east if by early 2000 it becomes apparent that there is likely to be significant delay in the provision of the M&KDR.
21. Although this is a strategic site which will have affected the Structure Plan housing requirements, the possibility of identifying a reserve site, that could be brought forward in the event of it proving impossible to fully develop East Hall during the Plan period, should be examined. Any reserve site should provide the same community benefits and avoid prejudicing the eventual development of the strategic sites."
- He also recommended, when dealing with the potential of shortfall of 530 houses:
"In 5.11.19 rewording is required to recognise that temporary access for up to 200 houses via Eurolink III will be acceptable."
- Secondly, in relation to Sittingbourne, he said:
"51. East Hall Farm is a strategic site forming a component of a comprehensive development associated with the provision of the NDR. Assumptions on the availability of the site will have influenced the Structure Plan housing requirements. It could be argued that if the potential of the site was not achieved in the Plan period it would be a matter for consideration in the context of a review of the Structure Plan. However, the most likely cause of delay would be problems in the construction of the NDR from the north-west. Modifications that I am proposing to the Plan would facilitate construction of the road from the south-east should the desired course prove to be unachievable. This would enable the development of the Stones Farm site which would in any event probably have formed a part of the eventual overall development of North East Sittingbourne in conjunction with the provision of the NDR. The development of Stones Farm would in my view accord with both the Thames Gateway Initiative and strategic policy. Although this site would only partially off-set the shortfall that would result if East Hall Farm fails to provide more than 200 dwellings in the Plan period, I am recommending elsewhere that Stones Farm be identified as a reserve site in the event that the NDR cannot be constructed from the north-west and that it is consequently impossible to fully develop East Hall Farm during the Plan period."
- He recommended that the potential shortfall should be addressed by the identification of suitable reserve sites.
- Thirdly, he dealt with the NDR:
"15. The Deposit Draft Plan envisages no construction on the East Hall site prior to the provision of the section of the NDR to link it with the MKDR, this would include the crossing of the navigable Milton Creek, the Sittingbourne and Kelmsley Light Railway and land likely to have a low bearing capacity and subject to landscape and nature conservation constraints. Although there is the possibility of Central Government assistance in the form of Section 13 grants both the MKDR and the NDR would be essentially developer funded, with the NDR (and possibly elements of the MKDR, not required to facilitate development at the Kelmsley and Ridham), relying on the development at North East Sittingbourne to fund their construction. Recognising the high costs associated particularly with the creek crossing, the Council and the Highway Authority would now accept up to 200 dwellings with access initially via Castle Road and through the Eurolink industrial area as a 'pump priming' measure. Whilst such an access would be far from ideal and may also deter some would-be developers it is considered acceptable as a short-term measure until link age to the NDR can be provided. In the circumstances it would be inappropriate not to allow any development at East Hall Farm until the NDR and its link with the MKDR were in place as suggested by the Sittingbourne Society.
16. It is accepted that construction of the NDR from the north-west would bring the greatest benefits in terms of relief of town centre roads, would ensure the construction of the most difficult and expensive part of the road first and would provide a direct link from the development to the improved A249 which RPG9a recognises to be at the heart of the regeneration opportunities at Sittingbourne. This however relies on the prior provision of a significant part of the MKDR which in turn depends on developer funding and the need for it would not be triggered until 140,000 sq m of industrial development at Ridham had been completed and occupied. Whilst the scenario described by some objectors who question the ability of development at North East Sittingbourne to finance the necessary link and the practicality of it being provided in is somewhat pessimistic, I consider that there is a real risk that it will not be possible to provide linkage to the MKDR during the Plan period. I write this having particular regard to the uncertainty over the provision of the section of the MKDR to the south of Ridham Avenue, which like the creek crossing, would involve land which is not in the control of the prospective developers at North East Sittingbourne.
17. It is consequently recommended that whilst the Plan should encourage provision of the NDR from the north-west, it should provide the flexibility to enable linkage to the A2 to the south-east should reassessment of the situation, in say early 2000, indicate that there is no realistic possibility of linkage to the north-west. Whilst the southern section of the NDR on the line recommended would involve an incursion into the gap between Sittingbourne and Bapchild, the crossing of a railway and the crossing of best and most versatile agricultural land close to environmentally sensitive areas, the engineering, land ownership and cost constraints are likely to be less serious than those with the section between the East Hall site and the MKDR.
18. Were it necessary to construct the road from the south-east it is recommended elsewhere that Stones Farm should be released as a housing site as would be 'reached' by the NDR prior to East Hall Farm and the Stones Farm development would be required to fund the further progress of the road. Bearing in mind the level of development required to finance the NDR and the restriction on the total amount of development that could be accepted in highway terms prior to the complete road being in place the likely effect of this would be to delay the completion of East Hall Farm (other than the initial 200 dwellings) beyond the Plan period.
19. Despite my doubts over the ability of the site to contribute more than 200 dwellings during the Plan period it is considered that the whole of the East Hall Farm site should remain allocated for housing. The Council accept that the development of the East Hall Farm housing site and associated employment site allocated in Policy B33(4) would not be sufficient to finance the entire road. In order to provide greater clarity and certainty with the overall proposal it is concluded that not only should the entire road route be shown on the Plan but also that the additional employment and housing sites required for its completion should be identified and protected."
- He recommended accordingly:
"c. The rewording of paragraph 5.3.56 as follows:
5.3.36 Land is allocated for 550 units to be provided within the Plan period. A first phase of 200 dwellings to the south of East Hall is proposed to be completed in the period to 2001. Whilst the development will assist in the funding of the Northern Distributor Road (N D R) access to the first phase up to a maximum of 200 dwellings, may initially be via Castle Road. Further development shall be dependent on the provision of a section of NDR. Subject to paragraph 5.3 ** below this shall be the section of the NDR providing access from the north-west from the Milton and Kelmsley Distributor Road (MKDR).
d. The insertion of an additional paragraph after 5.3.56:
5.3.** As the access from the north-west via the NDR is dependent on the provision of the MKDR, which in turn is dependent on further developer funding, the situation will be reassessed in early 2000. If by April 2000 a contract has not been let for the section of the MKDR that would enable the NDR to be connected to the A249, access may be provided by means of the section of the NDR linking to the A2 to the south.
5.11.** Development is dependent on the construction of the Northern Distributor Road (NDR) which is shown on the Proposals Map. The allocations themselves should enable a substantial proportion of this important road to be constructed from the north-west during the Plan period. However, particularly in view of its reliance on the completion of the Milton and Kelmsley Distributor Road, the requirement that access be initially provided from the north-west rather from the A2 to the south-east will be reviewed in early 2000. If by April 2000 a contract has not been let for the section of the MKDR that would enable the NDR to be connected to the A249, access may be provided by means of the section of the NDR linking to the A2 to the south-east. In any event no permanent vehicular access to the sites will be accepted from existing residential roads in Murston, other than for public transport and emergency vehicles. Development briefs in accordance with an overall framework document will be required to guide development in this area. There are a number of specific issues that will need to be addressed;"
- Fourthly, he turned to Stones Farm:
"3. Although the Stones Farm site comprises land of best and most versatile quality (over half Grade 1), it was recognised in the Consultative Draft Plan as having potential to contribute to the overall development and the view was taken that, with a development restricted to 200 dwellings, there would not be an unacceptable effect on the gap between Bapchild and Sittingbourne. The objector has now reverted to this reduced scheme and I would accept that, in view of the prevailing land quality around Sittingbourne and the importance of securing the overall North East Sittingbourne proposals, there would be exceptional circumstances to justify the release of this prime agricultural land.
4. It is concluded elsewhere that the whole of the NDR should be shown on the Proposals Map in order to provide greater clarity and consequently certainty in relation to the implementation of the overall strategy for the area. In addition, the delineation of the whole route would enable initial access to the allocated sites to be provided from the south-east in the event that it was not possible to provide the preferred access from the north-west during the Plan period. With the route recommended in 5.6.6 of the Report, development options would be limited to the Stones Farm site would represent a logical completion of the built-up area of Sittingbourne. Further expansion to the east would be constrained by the line of the new road.
5. With the preferred construction of the NDR from the north-west it is most unlikely that the section between the railway and the A2, upon which the development of Stones Farm would be dependent, would be in place during the Plan period. As long as the Plan seeks the construction of the road in this way it would be inappropriate to allocate this site.
6. There is however a serious danger that delay in the construction of the Milton and Kelmsley Distributor Road (MKDR) will make it impossible to construct the NDR from the north west during the Plan period. This would mean that the contribution from the strategic East Hall Farm site would be restricted to 200 dwellings, some 350 below its anticipated yield. Such a shortfall would have serious consequences in relation to housing land supply. The anticipated contribution from the East Hall Farm will have affected the Structure Plan housing allocation for Swale and replacement sites should not be sought if they would undermine the basic approach of the Plan or threaten progress on the major strategic sites. However, if it becomes clear by early 2000 that the MKDR will not be in place to enable the construction of the NDR from the desired direction, I am recommending that the construction of the NDR should be allowed from the south-east. This would enable the potential shortfall at East Hall Farm to be partially off-set by the earlier development of Stones Farm, which in any event would in all probability have formed a part of the overall North East Sittingbourne development. Stones Farm should therefore be identified as a reserve housing site but in line with the approach adopted elsewhere should at this stage be excluded from the built-up area boundary."
- And he recommended accordingly.
- Lastly, he turned to the route of the NDR:
"3. Whilst the road is mentioned in the supporting text and the route is shown diagrammatically on Map 8. The Plan currently contains no specific policy in relation to the NDR and it is not shown on the Proposals Map. Although it is not envisaged that the complete road will be provided in the Plan period, major allocations at East Hall Farm are dependent for their completion on a significant proportion of the road being in place. Having regard to the guidance of PPG12 it is considered essential that the Plan should at least show the section of the NDR required to gain access to the allocations of the Plan. Also, in the interests of providing clarity and certainty in relation to the strategic development at North East Sittingbourne, which will extend beyond 2006, it is desirable that the whole route should be shown. This is a matter that was of particular concern to the County Council when the Certificate of Conformity with the Structure Plan was issued.
4. As it would ensure the provision of the most costly and difficult section of the road in engineering terms and would also provide the greater benefit in terms of initial traffic relief in the town centre, it is desirable that the road should be constructed from the north-west. With this scenario the delineation of the route of the road from its junction with the Milton and Kelmsley Distributor Road (MKDR) to the access point of the East Hall Farm site would at the very least be required if the Plan is to accord with national guidance. Although important matters such as the way the road will cross Milton Creek remain to be resolved, there is agreement between interested parties on the general alignment of this Section. Whilst it may not be a route that has formally been approved by highway authority there is no reason why the line as far as the access to East Hall Farm should not be shown on the Proposals Map.
5. However, construction of the NDR from the north-west is dependent on prior construction of the MKDR. Like the NDR the MKDR is to be primarily developer funded and the requirement for its provision would not be triggered until 140,000 sq m of industrial development at Ridham is in use. Whilst such a level of development may take place within a time frame which would allow the construction of the MKDR and the relevant section of the NDR to give access to the East Hall site within the plan period, there is a real risk that this will not be the case.
6. As well as the desirability of delineating the whole route in the interests of clarity and certainty, this would also identify the alternative access to the allocated sites at East Hall Farm from the south-east in the event that construction of the NDR from the north west could not proceed. Whilst not bringing the same community benefits, access from the south-east is likely to be easier to construct and the highway authority now accept that a housing development of the size of East Hall Farm could, in the short term, have access from the south only without unacceptable consequences for traffic in the town centre.
7. The Council's concern that construction from the south-east could jeopardise the completion of the road would, in my opinion, be largely addressed by the suggestion that developers contribute to a fund for the construction of the road at various phases in North East Sittingbourne are completed. This is a matter that could be addressed in a development brief and form the subject of an agreement or undertaking.
8. There is disagreement on the route of the southern section of the NDR between the Sittingbourne to Faversham railway and the A2. ... ...the Council currently favour a route that would join the A2 to the east of Bapchild because it would avoid the narrow gap between Sittingbourne and Bapchild and it would act as a by-pass of Bapchild. The Highway Authority and the joint developers of North East Sittingbourne favour a route that would join the A2 to the west of Bapchild.
9. The route to the east of Bapchild would involve a significantly greater length of road and I would question whether it could be reasonably justified as a pre-requisite for development at North East Sittingbourne. It would also involve land that is not in the control of the joint developers which would bring uncertainty to the overall project.
10. In addition, the eastern route would be likely to have a greater environmental impact and a greater impact on agricultural land. ...
11. The primary function of the NDR is to relieve Sittingbourne Town Centre and provide an alternative access to the existing and proposed development areas to the north east of Sittingbourne. With the route to the east of Bapchild through traffic, that would otherwise use the M2 to Brenley Corner, may be drawn on to the A2 which would increase the number of vehicles passing through the villages of Teynham and Ospringe. This would be contrary to one of the highway objectives of the Plan. A further very significant factor is the effectively increase in the journey between the new development and the facilities of the town centre that would result from the NDR joining the A2 to the east of Bapchild. This would be contrary to one of the fundamental aims of the Plan of providing sustainable forms of development.
12. There would clearly be an impact on the gap between Sittingbourne and Bapchild with the western route. However, subject to detailed alignment and appropriate landscaping, I am satisfied that the separation of the settlements could be maintained.
13. Despite the impact of a new junction on the gap between Bapchild and Sittingbourne and the loss of an opportunity to provide a by-pass for Bapchild, it is considered that the alignment shown on Travers Morgan's drawing 3B 43347/PI001C, joining the A2 to the west of Bapchild would, unlike that shown on Map 8 in the Plan, provide a realistic and attainable route for the southern section of the NDR. It would also have a less severe environmental impact and would result in a more sustainable form of development at North East Sittingbourne.
14. It is considered that the overall route of the NDR as indicated on drawing 3B 43347/PI001C should be shown on the Proposals Map and that a specific policy should be introduced into the Plan. The modifications process would enable the views of the public to be canvassed on the alignment. It is not accepted that such a fundamental matter should be left until the review of the Plan. Whilst the supporting text should make clear that the preference will be for construction of the road from the north-west it should make provision for a review of the situation, in say early 2000 and enable construction from the south-east if necessary."
- In line with his earlier recommendations, he recommended:
"Final phasing and programming arrangements for construction of the Northern Distributor Road will therefore be subject to on-going monitoring and reviews in the context of progress towards implementation of key elements of the local plan strategy for housing and economic development. In particular the requirement that access to the housing and employment allocations should initially be via the section of the NDR linking to the MKDR will be reviewed in early 2000. If by April 2000 a contract has not been let for the section of the MKDR that would enable the NDR to be connected to the A249, access may be provided by means of the section of the NDR linking to the A2 to the south-east. Legal agreements to ensure the provision of the Northern Distributor Road will be sought from the developers of North East Sittingbourne."
- He also recommended that the Borough Council required development briefs to be prepared for sites within an overall development framework:
"C. The Borough Council will require the preparation of development briefs, which accord with an overall framework document for North East Sittingbourne, to be submitted to and approved by the Borough prior to the granting of any planning permissions. The development briefs, together with the submissions of applications for development will consider:
(then as in the Draft Plan subject to:)
the addition of 'from the Milton and Kelmsley Distributor Road to the A2 west of Bapchild' to the end of (a);
the replacement of the 'the A2' at the end of (b) by 'the existing A2 (other than via the Northern Distributor) and the desirability of constructing the Northern Distributor Road to initially link with the Milton and Kelmsley Distributor Road;'
the addition of a reference to West Tonge Farm to (h) and;
the replacement of (k) and (l) by;
'the need to comply with policies B37, H66, R30 and the appropriate criteria in Policy G1.'
alteration of the Proposals Map to reflect the areas shown on Symonds Travers Morgan drawing 3B 43347/PI001C."
- In line with the statutory procedural obligations, Swale Borough Council's Development Committee considered the Officer's report on the Inspector's recommendations on 14th and 15th April 1999, and 26th May 1999. Its Officer's report noted that the Secretary of State had made it clear that the Inspector's recommendations should be accepted unless there were very clear reasons for not doing so. The Officer's report set out what the Inspector had to say about the principle of reserved sites and then commented:
"30. The reserve site approach is not one that I am familiar with. PPG2, relating to Green Belt land, allows land to be safeguarded for consideration for development in the longer term, in order to avoid the necessity of reviewing the Green Belt boundary every time a Local Plan is reviewed. This is the nearest that Government guidance comes to the reserve site concept. However, even in Green Belts the approach is different, with the safeguarded sites only being considered in the context of a review of a Local Plan, not upon the arrival of specific 'trigger' dates during the current Local Plan period. Swale, however, has no Green Belt land, and PPG3 'housing' gives no support to the reserve site approach.
31. As a device for addressing potential land supply shortage it was not discussed in any detail at the Inquiry, and was only raised with the Borough Council in questioning from the Inspector. The Borough Council's response to this suggestion was one of concern, but this concern is not noted in the Inspector's Report. Furthermore, it is not known whether it is an approach that would be supported by the HBF in addressing potential land supply difficulties. Their position at the Inquiry was that there will be a potential land supply shortfall, and that this should be met by additional and immediate allocations in the Plan. This, though, is considered unnecessary by the Inspector.
32. The reserve site approach, therefore, appears to be the Inspector's own solution. He has given no indication of where it has been used before, or, indeed, if it has been used anywhere else before. Furthermore, he has not drawn upon Planning Policy Guidance to justify it. To help in my deliberations of this matter I have sought the views of the Kent Planning Policy Forum. From the discussion at the Forum it was clear that no other authority in Kent has had experience of the approach, and that it was one that should be treated with considerable caution. Two main concerns were expressed.
* the approach pre-empts the review of the Local Plan as sites so identified, although not allocated for development, are being accepted as suitable for housing development in principle. Therefore, whilst they may not need to be considered for development during the Local Plan period, if the allocation they are to replace proceeds, the authority will find it difficult not to allocate them in the next Local Plan. For the next review of the Local Plan, however, there will be new Structure Plan housing requirements flowing from the review of Regional Planning Guidance, and a review of the Structure Plan itself. In the light of new Regional Planning Guidance and a new Structure Plan, the reserve sites may not be the most appropriate for future development; and
* it could result in an over-provision of housing land during the Plan period as there is nothing to stop both the allocated sites and the reserve sites coming forward. Once the 'trigger' dates for release of the reserve sites are reached, the allocated sites are not removed from the Plan - they can still come forward. The strategy of the Structure Plan for the Borough is that new housing development should support, and keep pace with, new employment development to keep the two in balance. The reserve site approach, however, could result in a tilt in the balance towards housing development, which will lead to more commuting and travelling. This would not accord with the sustainable development principles of the Structure Plan and Government Planning Guidance.
33. In addition to these concerns, and of most importance, is that the sites being recommended are all greenfield sites - in total comprising about 46ha of land and entirely grades 1 and 2 agricultural land. At the present time, Government planning policy is continuing to fundamental shift away from greenfield development. ... This is likely to be reinforced in the soon to be published draft revised PPG3 'housing'. ... It is difficult to see how this fundamental reassessment can be undertaken, if the Borough Council has already committed itself to the development of 46ha of greenfield land.
34. Therefore, I consider that to introduce the concept of the reserve site into the Local Plan is unfounded in Government guidance, and will create serious problems both during this Local Plan period, and for when the Plan is reviewed, and I would recommend that Members do not accept the Inspector's recommendation in this regard. Later in this report I will consider in detail the Inspector's concerns with the specific allocations giving rise to the potential land supply shortage, and how I would prefer to deal with the issues raised. In general, however, my view is that the most appropriate way to deal with any potential land supply shortage is through an early review of the Local Plan."
- The Officer's report dealt with the strategy as it emerged from the Inspector's report on Stones Farm and East Hall Farm and the NDR, again after the setting out the Inspector's recommendations:
"208. Discussion: In making these recommendations the Inspector has almost entirely supported the objections made to the Plan by Blue Circle Properties, and to a lesser extent those made by Alfred McAlpine Projects Ltd. He has concluded that the entire development likely to take place in North East Sittingbourne should be shown, and approached, in a comprehensive way now, even though the development will extend beyond the lifetime of this Local Plan, and possibly even the next one as well. The extent of the development he is proposing is shown in Plan 14.
209. The approach advocated by the Inspector causes me serious concern in a number of respects:
1. Strategy:The proposed development in North East Sittingbourne is the most complex in the Local Plan, involving many elements. It is also a strategic development stemming from the Thames Gateway Planning Framework (RPG9a) and the Kent Structure Plan. It is important, therefore, that it proceeds in accordance with a clearly defined strategy. The strategy advocated in the Local Plan is clear and unequivocal - development should proceed from the north west, linking with the strategic road network to the west of Sittingbourne. The strategy has been developed jointly by the Borough Council, County Planning Authority and the County Highway Authority as the most appropriate, and the one bringing the most benefit to the town as a whole. The Inspector too has also accepted that this is the best, and preferred approach. He comments:
'As it would ensure the provision of the most costly and difficult section of the road in engineering terms and would also provide the greater benefit in terms of initial traffic relief in the town centre, it is desirable that the road should be constructed from the north-west.'
However, the Inspector's recommended approach involves the complete abandonment of this strategy at a certain (arbitrary) point in time. By introducing the potential development of Stones Farm into the equation at this stage, he is totally undermining the agreed strategy for North East Sittingbourne, and introducing uncertainty into the development process. In particular, given that Stones Farm is in a different ownership, and the development could proceed independently of that to the north of the railway, there can be no guarantee that this development will ever be linked into the East Hall Farm area by the provision of a bridge over the railway.
2. Stones Farm: The Inspector considers that Stones Farm should be shown as a reserve housing site. This, he considers, would not only enable some of the potential housing shortfall at East Hall Farm to be dealt with, but would also enable some progress to be made with implementing the NDR, starting from the south.
Earlier in this report, when discussing the housing land supply situation (see pages 4-11) I have set out my concerns regarding the reserve site concept favoured by the Inspector, and I have recommended that it is not accepted in principle by the Borough Council.
Putting these concerns to one side, however, I also have other concerns about showing Stones Farm in the Local Plan at this stage. Firstly, as explained above, Stones Farm could only be developed during this Plan period if the strategy for development in North East Sittingbourne is changed. Secondly, Members will recall that at Consultative Draft stage, Stones Farm was allocated in the Plan with access directly on to the A2. This received significant objection from residents both at Bapchild and Murston. It also attracted objection from the Ministry of Agriculture. The north-west strategy promoted in the Deposit Plan was partly shaped by these earlier concerns raised to Stones Farm. The much lower level of objection to the Deposit Plan demonstrates that the approach advocated now in the Plan has much more support amongst local people. If Stones Farm were to be put back into the Plan now, significant objection can be anticipated, and there will be a real risk that a second Inquiry will be needed to address some of the issues raised.
3. Traffic Impact on the A2 and town centre: In promoting the development of Stones Farm with access from the A2, the Inspector concluded:
'Whilst not bringing the same community benefits, access from the south-east is likely to be easier to construct that the highway authority now accept that a housing development of the size of East Hall Farm could, in the short term, have access from the south only without unacceptable consequences for traffic in the town centre.'
This is somewhat of a sweeping statement by the Inspector, and does not accurately record the position of the Highway Authority at the Inquiry. In response to evidence submitted by the objector, the Highway Authority agreed that a southern access, linking from the A2, over the railway and connecting to Eurolink would 'provide a marginal benefit as compared to the base (do nothing) network in 2006'. However, they raised potential concerns with the junctions at St Michael's Road/Crown Quay Lane, Murston Road/Canterbury road and Mill Way/Eurolink Way, which would require more detailed consideration. The Highway Authority did not accept that the development of Stones Farm, with access on to the A2, and no crossing of the railway, would not have unacceptable consequences for traffic in the town centre, as suggested in the Inspector's conclusion. For the Inspector's conclusion to hold good, it will be necessary for the NDR to be provided from the A2, over the railway, and to link into Eurolink before any housing development takes place on Stones Farm. This, though, is not what the Inspector recommends, and I am fearful that if Stones Farm is allowed to proceed with access from the A2, the road may not proceed beyond the railway. This, undoubtedly, would have an impact on the A2 and the town centre, though the extent and scale of the likely impact would need to be assessed before such development is considered.
210. However, putting all these concerns to one side, the approach advocated by the Inspector in his recommendations only works if the NDR is shown on the Proposals Map. In this regard PPG12 'Development Plans and Regional Planning Guidance' advises that:
'5.35 Where planning authorities wish to safeguard land for particular road proposals, they should do so through a proposal in the local plan. When the precise route of a proposed new or improved road is known at the time of the preparation of the plan, this should be shown on the proposals map as a route to be safeguarded. When the precise route is not known, but where proposals are sufficiently advanced the authority may define on the proposals map the area of land over which it intends to apply a safeguarding policy. The use of diagrammatic lines to illustrate the route should not be used where it could be misleading. For the sake of clarity, plans should list any road schemes which have previously been safeguarded and are now to be abandoned.'
211. The potential to cause blight is also a consideration, and PPG13 'Transport' advises:
'5.7 Blight should be kept to a minimum by including in plans only firm schemes on which work will commence within the plan period. Local planning authorities should use the process of preparing or amending development plans to review transport proposals and remove the effects of blight where proposals are now unlikely to be taken forward by listing abandoned schemes.'
212. It is my view, and that of Counsel, that the NDR falls foul of PPG guidance, and therefore cannot be shown on the Proposals Map. Whilst the Inspector had before him the route being promoted by Blue Circle and Alfred McAlpine, which has been worked up in some detail, he did not have some other route options. Without consideration of other route options, it cannot be said that the route promoted by the objectors is either 'precise' or 'sufficiently advanced', and therefore fails to satisfy PPG12. Furthermore, I do not consider that the route that the Inspector had before him was supported by sufficiently detailed justification to enable him to come to a firm recommendation on the routing of the road.
213. Whilst the general route of the road to the north of the railway is largely agreed in principle by the Highway Authority, the Borough Council and the developers, the Inspector was made fully aware of the differences of opinion on the alignment of the road to the south of the railway, and that the route of the road promoted by the objectors could not be considered as agreed. He acknowledges this in his report by stating:
'With the NDR the precise line has not been agreed and the crossing of Milton Creek, which is a navigable waterway, and the impact on environmentally sensitive areas are likely to be controversial. Land acquisition could also present problems.' (Paragraph 17, page 51).
214. The Borough Council has consistently favoured a route for the NDR that also acts as a bypass for Bapchild, as clearly indicated on the Proposals Map at consultative draft stage, and on Map 8 in the Deposit Local Plan. Whilst, in general terms, the Inspector considered the possibility of the NDR joining to the A2 to the east of Bapchild, he did not have any route options before him.
215. Normally, before the route of a road as important as the NDR is shown on the Proposals Map of a Local Plan, there would have been a proper evaluation of all the route options, together with public consultation. Furthermore, in the case of the NDR which is to be entirely developer funded, route options would need to be considered in association with development options. The consideration of a range of development scenarios is not for the Local Plan, but should be part of the work feeding into the Local Plan. The Local Plan would then present the Borough Council's favoured position, to which formal representations for and against can be made. This is exactly the process that was envisaged for the land to the south of the railway, in the context of the review of the Local Plan.
216. The Inspector, however, has totally undermined this process of debate, by rejecting any route east of Bapchild. ...
217. He made these conclusions, however, without the benefit of any evidence as to how the concerns he has raised could be addressed. Similarly, he has accepted the route to the west of Bapchild without having the views of the residents of Bapchild (for example as in the letter circulated to Members from the Bapchild Parish Council, and contained in representations submitted to the Borough Council, which are summarised in Appendix C), and from Murston. The Parish Council has submitted a petition, signed by some 550 people, objecting to the Inspector's recommendation, and I understand that Councillor Jordan also has 40-50 letters raising objections.
218. In any event, and returning to the paragraph 5.35 of the PPG12 referred to above, guidance is that safeguarding land for road proposals can be considered by local planning authorities 'at the time of preparation of Plan'. This, and I have sought Counsel's advice, is the period leading up to the preparation of the Deposit Local Plan. Therefore, it is now too late in the Local Plan process to introduce this issue.
219. Symonds Group, on behalf of both Blue Circle and Alfred McAlpine have made a submission giving their views on how the development proposals for North East Sittingbourne should be progressed. The submission is summarised in Appendix C, and a full copy has been placed in the Members Room. ... "
- The Officer's report recommended that the Inspector's recommendations should be in part rejected and that proposed modifications should be published accordingly. Those recommendations were accepted. The proposed modifications, with the decisions on the recommendations of the Inspector and the reasons for those decisions, were set out in a formal schedule, but it is unnecessary to refer further to that in view of the regrettably very extensive extracts from the Officer's report. The reasons repeat the essential reasoning set out in the Officer's report.
- It is necessary to draw attention to certain of the proposed modifications, however:
"Development should proceed in accordance with a Development Framework to be prepared for the entire North East Sittingbourne Area, and a Development Brief to be prepared for the site, both of which are to be agreed by the Borough Council.
5.3.** ...it considers that if a shortfall arises, it is a matter for the Borough Council to monitor and manage during the Local Plan period, and to address through an early review of the Plan, to which it is committed. Furthermore, in the case of East Hall Farm, the Borough Council considers that should there be delay with related road infrastructure, development can proceed in a phased way with access initially being achieved using existing road infrastructure (see paragraphs 5.3.56-5.3.** of the Plan). In this way the potential land supply shortage arising from this site will be minimised.
5.3.56 Land is allocated for 550 units to be provided within the Plan period. A first phase of 200 dwellings to the south of East Hall is proposed to be completed in the period of 2001, with a further 350 by 2006. Development of the site should take place in association with the construction of the first phase of the Northern Distributor Road (NDR), involving its linkage to the Milton and Kelmsley Distributor Road (MKDR) and the crossing of Milton Creek, from which vehicular access to the development site will be achieved. However, the Borough Council acknowledges that potential delays with the construction of the MKDR, and difficulties in crossing the creek, may mean that progress with this part of the NDR may be delayed. In this eventually, the Borough Council will give consideration to the first phase of 200 houses being developed initially with access provided via Castle Road. Such consideration will be dependent upon the submission of a transport impact assessment, and the introduction of approximately improvements to the existing highway network, and other transport measures, considered appropriate by the Borough Council.
5.3.** If the first 200 dwellings proceed with access via Castle Road, and there has still been insufficient progress made with the MKDR to enable the NDR to link with it, the Borough Council will give consideration to further housing being allowed with access initially via Castle Road, up to the maximum allocated. This consideration will be dependent upon:
* progress made with the preparation of the Development Framework for the entire development in North East Sittingbourne;
* whether the review of the Local Plan is underway; and
* the submission of a further transport impact assessment, which may require further improvements to the existing highway network and the introduction of other transport initiatives.
5.3.** However, any development allowed with access via Castle Road would only be acceptable in the short term, as the main access to the site must be provided from the NDR. Therefore, if development of the site is allowed in advance of the construction of the first phase of the NDR, the Borough Council will seek a legal agreement securing payments from the development towards the cost of providing it.
5.6.23 It is anticipated that the proposed development at north-east Sittingbourne shown in the Local Plan will, during the Plan period, provide the new road from the north west as far as the East Hall Farm housing area. The remaining length of road will be provided outside the period covered by this Local Plan. However, given potential delays with the construction of the Milton and Kelmsley Distributor Road, and potential difficulties with the crossing of Milton Creek, the Local Plan makes provision for the employment and housing development proposed at East Hall Farm to proceed with access initially via the Eurolink Industrial estate (see paragraphs 5.2.18 and 5.3.56 - 5.3**). Given the complexity of the development proposals for North East Sittingbourne, and their relationship with the provision of the Northern Distributor Road, the Borough Council will prepare a Development Framework for the entire development. As explained in paragraph 5.6.22 above, this will consider route options for the road, and associated development opportunities. It will also seek to set out how the development proposals will be implemented, both during the beyond the current Plan period, and will provide a key input to the review of the Local Plan.
5.11.15In order to maximum this development potential, the Borough Council has allocated land to the rear of the football ground for economic development, and land at East Hall Farm for 550 dwellings. Development is linked to the construction of the Northern Distributor Road (NDR), proceeding from the north west...
5.11.**Ideally, there should be no development until sufficient length of the NDR has been provided, and the Borough Council will seek to ensure this. However, given the potential delays with the construction of the Milton and Kelmsley Distributor Road, to which the NDR would link, and difficulties in crossing Milton Creek, this may not be possible. In this eventuality, the Borough Council will give consideration to a first phase of 200 houses and the whole of the employment allocation being developed initially with access provided via Castle Road. Such consideration will be dependent upon the submission of a transport impact assessment, and the introduction of appropriate improvements to the existing highway network, and other transport measures, considered appropriate by the Borough Council.
5.11.**If the first 200 dwellings proceed access via Castle Road, and there has still been insufficient progress made with the MKDR to enable the NDR to link with it, the Borough Council will give consideration to further housing being allowed with access initially via Castle Road, up to the maximum allocated, as explained in paragraph 5.3.** of the Plan.
5.11.**However, any development allowed with access via Castle Road would only be acceptable in the short term, as the main access to the site must be provided from the NDR. Therefore, if development of the site is allowed in advance of the construction of the first part of the NDR (ie from the MKDR, across the creek and into the East Hall Farm development area), the Borough council will seek a legal agreement securing a contribution from the development towards the cost of providing this part of the NDR.
5.11.**Given the complex relationship between the development areas and the provision of the NDR, and that further development in the area will be required beyond the lifetime of this Local Plan to secure the entire NDR, the Borough Council will prepare a Development Framework document for the North East Sittingbourne Area. This will set out in more detail than in the Local Plan how the development will proceed in a comprehensive fashion. As the NDR will ultimately link with the A2, the Development Framework will consider options for the routing of the NDR, particularly to the south of the railway, and associated development opportunities (in addition to those promoted in this Local Plan) which will be required to fund the construction of the entire road. The Development Framework will be subject to public consultation before the Borough Council decides on the route of the NDR and associated further development proposals to be included in the Local Plan when it reviewed.
5.11.**In addition to the Development Framework, which will provide overall guidance on the approach the development in North East Sittingbourne as a whole, a Development Brief will need to be prepared for each of the individual development sites. There are a number of specific issues that will need to be addressed in Development briefs to be prepared."
- McAlpines then objected to the rejection of the Inspector's recommendation and sought the allocation of Stones Farm as a reserve site as recommended by the Inspector and sought the adoption of his recommendations on the Northern Distributor Road. It urged that there had been no change in circumstances to justify the rejection of the Inspector's recommendations and complained that the Council had just reiterated matters already raised before the Inspector by way of response to the recommendations, and argued that if the Council were concerned that the issue of reserve sites had not been fully debated, the Council could reopen the inquiry.
- On 27th January 2000 the Development Committee considered the Officer's report on objections to the proposed modifications and to the decisions which it had made on the Inspector's recommendations. It dealt with the reserve housing sites in Sittingbourne as follows. The Planning Officer set out the objections made to the absence of reserve sites by McAlpines and others and noted that the HBF was also calling for the identification of reserve sites. He commented that there was no Government Office objection to the Council's rejection of reserve sites, and that he would have expected there to have been such an objection had there been a real concern about a housing shortfall. I add that GOSE wrote in response to another objector who was concerned about housing and the new guidance on the development of brownfield land contained in PPG3:
"6. GOSE consider that the adoption of an up-to-date Borough-wide local plan for Swale is well overdue. Further delay could only be justified if the changes needed to the draft deposit plan are fundamental and go to the heart of the plan and that it would not be reasonable to proceed with the plan in its existing substantive form. On the evidence at hand with regard to the Swale Borough Local Plan GOSE does not believe this to be the case. A review at this stage would be detrimental in the delay of revised plan policies relating to all other planning policy guidance in addition to that relating to PPG3. Conditional upon Swale Council undertaking the immediate and speedy review to which they are committed, to bring plan policies fully into line with PPG3, GOSE does not consider that on balance it would be appropriate for the Council to undertake a pre-adoption review of the plan at this stage and thereby significantly delay its adoption.
7. In order to ensure that a focused and rapid post adoption review is undertaken expeditiously, I am requesting Swale Borough Council to provide GOSE with a programme containing target dates for the early completion of the review and for the alteration or replacement of the plan to bring it fully into line with PPG3 following the plan's adoption."
- The Planning Officer set out at considerable length the Kent County Council's support for Swale Borough Council's approach to housing land supply and to reserve housing site. The County Council's comments concluded:
"The identification of this strategic opportunity was influential in setting the housing figures for Sittingbourne and the total housing requirement for the Borough which is set significantly above the levels based on trend growth rates and locally generated household growth. A departure from the strategy involving the development of other greenfield sites would not bring the same benefits, would prejudice the prospects for implementing the Structure and Local plan Strategy, the principle of which has been endorsed through the development plan process. I am firmly of the view that it would be inappropriate to depart from the original strategy for North East Sittingbourne without properly revisiting the proposals as part of future reviews of the Structure Plan and Local Plan. In this respect I welcome the Borough Council's suggestion that further development opportunities in North East Sittingbourne, in addition to those allocated in this Local Plan, should be considered comprehensively alongside route options for the NDR as part of the preparation of a Development Framework for the area. In the light of the above I recommend that no objection be raised to the Borough Council's response to the proposals regarding housing provision in the Sittingbourne area."
- He also noted that MAFF supported the Council. He recommended no change to the Local Plan in respect of the reserve housing sites.
- He then turned to the NDR and the development of North East Sittingbourne. He set out an extract from McAlpines' letter and noted the comment at the end:
"If the Council decide not to accept the Inspector's recommendations it is appropriate and inevitable that these matters should be properly tested and considered in the forum of a reopened Local Inquiry."
- The Officer also set out the position of other objectors supportive of McAlpines. I add parenthetically that Mr Stoker for the Borough Council put some weight on the fact that those supporters of McAlpines are not challenging the Local Plan, but instead are working with the Borough Council on developing the framework for the Sittingbourne area. This does not seem to me a matter of any consequence for the issues which I have to decide.
- The Officer's report then commented:
"55. ...it is appropriate to give a general response here given the importance of the NE Sittingbourne development proposals to overall strategy of the Plan. This, for the Stones Farm reserve housing site, has already been covered in the previous section of this report, but in general I do not consider that the submissions made present any additional information and arguments to persuade me that further modifications should be made to the Plan to reflect all of the Inspector's recommended changes to the Plan, and that the strategy for developing NE Sittingbourne should be changed. My view remains as reported to Members in April 1999, and the Borough Council's position is supported fully by the County Planning Authority and the Highway Authority. Furthermore, no objection from GOSE has been made on the implementation of this key development.
56. Through the Modifications to the Plan already agreed, the Borough Council and the Highway Authority have shown considerable flexibility on this issue by accepting that significant scales of development at East Hall Farm can occur in advance of the provision of any part of the NDR, with access provided from the existing highway network. Whilst this may not be the ideal way forward, it does allow development to proceed before major new infrastructure provision needs to be made. The Borough Council's approach also allows for consideration of all the options for development in NE Sittingbourne, together with alternative alignments for the NDR, through the preparation of a development framework - in advance of the review of the Local Plan. I remain firmly of the view that all the possible route options for the NDR need to be examined to the same degree of detail, and be subjected to public consultation, before a definitive route can be shown on the Local Plan Proposals Map. As the road is to be developer funded, it is necessary that this examination of route options is undertaken in parallel with an assessment of longer-term development opportunities. The proposed development framework for NE Sittingbourne will enable this assessment to be undertaken.
57. With regard to the comment from the agents for Alfred McAlpine Developments Ltd that it is 'appropriate and inevitable' that the Inquiry be re-opened if the Council decide not to accept the Inspector's Recommendations, I do not agree that this is so. The Inspector's recommendations are not binding on the Borough Council, and it is for the Borough Council to decide whether to accept them or not, and to present a cogent planning argument if it does not accept a recommendation. In the case of NE Sittingbourne, the Borough Council has not accepted all of the Inspector's recommendations, but it has been explained quite clearly why it has done this. As explained above, the Borough Council's position has been supported fully by the County Council, and no objection has been made by GOSE. If the objector considers that the Borough Council has not followed the correct procedures (and I consider that we have), then they can make appropriate representations to the Secretary of State."
- After further immaterial proposed modifications were published, the Local Plan was formally adopted on 20th July 2000.
- This has already largely been set out so far as is necessary for the McAlpines case in the course of the judgment on the Bovis case. It is necessary, however, also to refer to the way in which proposed modifications have to be dealt with in addition to decisions rejecting inspector recommendations. This brings in regulation 18 to the 1991 regulations, which provides:
"18.-- (1) subject to paragraph (7), a local planning authority proposing to modify proposals for a statutory plan or for the alteration or replacement of a statutory plan (whether to comply with a direction given by the Secretary of State or on their own initiative) shall, unless they are satisfied that the modifications they intend to make will not materially affect the content of the proposals --
(a) prepare a list of the modifications with their reasons for proposing them;
(b) make copies of that list available for inspection at any place at which the plan proposals have been made available for inspection;
(c) give notice by local advertisement in Form 4; and
(d) serve a notice in similar form on any person who has objected to, or made a representation in respect of, the plan proposals in accordance with these regulations and not withdrawn the objection or representation [and on such other persons as the authority think fit].
(2) The period within which objections and representations may be made to the local planning authority in respect of proposed modifications in six weeks beginning with the date on which a notice given pursuant to paragraph (1) is first published in a local newspaper.
(3) Objections and representations shall be made in writing and addressed in accordance with the details given in the notice.
(6) Where objections have been made to proposed modifications in accordance with this regulation and not withdrawn and the local planning authority do not cause a local inquiry or other hearing or examination in public to be held, regulation 17 shall apply to consideration of the objections as it applies to the consideration of objections in statutory plan proposals."
- Reasons, therefore, have to be given by a Council for its decisions on objections to proposed modifications, just as with decisions rejecting an Inspector's recommendations and rejecting objections to such decisions.
- Mr Dove on behalf of McAlpines drew attention to the fact that the disagreement between the Inspector and the Borough Council was not one over the simple evaluation of natural beauty, as he characterised it, or over a simple planning judgment which was not susceptible to elaborate reasoning. It was a sequence of disagreements about complex and interlocking recommendations and strategy: the risk of a housing shortfall at Sittingbourne; how that shortfall should be coped with so as to enable the NDR to proceed. In turn this affected the need to show the NDR route south of the railway and to settle the approach to development south of the railway so as to meet the risk of a shortfall. This was to be contrasted with the Council's reliance on a development framework and the full development of East Hall Farm. All of this related to the issue of how important and urgent was completion of the NDR and MKDR, and how important it was to build them from north west to the south. In that context, Mr Dove sought to distinguish the remarks of Schiemann LJ in the Welsh Development Agency v Carmarthenshire County Council case to which I have already referred. His remarks dealt with the legitimacy of a local planning authority relying on reasons already given to, but rejected by, an inspector, when in turn rejecting his recommendations:
"I do not consider that the Stirk case is authority for the proposition that a council is never entitled merely to repeat its previous statement of a pure value judgment when an Inspector disagrees with that value judgment. If the only issue is, for instance, whether a field and the trees thereon contribute significantly to the beauty of an area, no further elaboration is required...
Mr Christopher Lockhart-Mummery QC, sitting as a Deputy High Court Judge [said]:
'The County Council found that it would be "inappropriate" development in the countryside and in an area of great landscape value. Again, the point is, in the context in which it arises in this case, capable of little elaboration. It is manifestly a subjective judgment capable, as I say, of little compensation or elaboration. In my judgment, bearing in mind the specific terms of Policy DLPEN 1 (in relation to this area of great landscape value) a finding that this constituted inappropriate development amounted to adequate reason for differing from the Local Plan Inspector's conclusion.'
For my part, I find no error of law in this conclusion by the judge, and indeed I agree with it. All these reasons cases turn on their own facts, and I see no advantage in further analysis of further cases on either side of the line. In my judgment, in the present case, where none of the special factors set out in the two cases which I have mentioned were present and where the issue in essence was one of value judgment, I do not consider that more was required by way of reasons than the council gave. Indeed, on analysis, as Mr Drabble has fairly pointed out, the lack of elaboration of the council for its reasons is no greater than the lack of elaboration by the Inspector for coming to the opposite conclusion.
This is not a case where the appellants have persuaded me that they do not understand why the local planning authority came to a different conclusion from the Inspector. A careful look at his reasoning reveals no more than a description of the site and a series of value judgments. Nothing of substance would have been gained by the landowners if there had been an addition of more words to express the council's value judgment."
- The "two cases" referred to in that citation were ones where there had been a change of circumstances after an Inspector's report, which change prevented reliance on a mere repetition of previous reasoning as being adequate (Stirk), and a failure to consider the balance which clearly needed to be struck (Peel Investments). Mr Dove submitted that something more than mere repetition was required here; but that was in reality all that had been provided by way of reasoning. Mr Dove also referred to Bainbridge v Hambleton District Council 2000 JPL 796, in which Sullivan J said:
"Provided the Council's reasons show that it has genuinely considered the Inspector's findings it is, in my judgment, entitled to reaffirm it adherence to an argument which is advanced at the local plan inquiry and which was rejected by the Inspector. The more 'factual' the Inspector's conclusion the more may be required by way of reasoned justification. But I do not see why a local planning authority is not entitled to say, for example, 'the Inspector concluded that the site was not visible from point X and, therefore, rejected the Council's concerns as to its landscape impact. The Council has revisited point X and is satisfied, contrary to the Inspector's finding, that the site is indeed visible and it therefore adheres to its previously expressed landscape objection.'
There is no rule that the local planning authority is unable to disagree with an Inspector's findings of 'primary fact' and adhere to views earlier expressed. The underlying rule which emerges from all of the authorities cited above is that the reasons must demonstrate that the local planning authority has grappled with the reasoning underlying the Inspector's recommendation. That rule accurately reflects the different functions of the Inspector and the local planning authority in the Local Plan System: enquires and recommends, the latter decides in the light of the inquiry and recommendations."
- I agree.
- The issues in this case cover the full spectrum of fact, expert opinion, evaluation, planning policy and judgment.
The Reasons Challenge
- Mr Dove submits that in rejecting the Inspector's recommendations to allocate Stones Farm as a reserve site, to show the alignment of the NDR on the Proposals Map and to allow the construction of the NDR from the south east in certain circumstances, the Borough Council failed to grapple with the reasoning underlying those recommendations, failed to deal with substantial points made by the Inspector in respect of those recommendations and failed to give any or any adequate reasons for the policies which it ultimately adopted.
- Mr Dove dealt first with the reasons given in relation to the rejection of the principle of reserve sites and the allocation of Stones Farm as a reserve site. The Inspector recommended there should be reserve sites, including Stones Farm, in order to guard against the prospect that the allocated housing sites would not be developed, or developed sufficiently rapidly within the plan period so as to provide housing and to enable highway infrastructure to be built. Mr Dove submitted that the Borough Council's first reason for rejection of that recommendation, namely that it would preempt the review of the Local Plan, misunderstood and failed to grapple with the Inspector's point. In any event he submitted that the Borough Council's approach to East Hall Farm, permitting some and eventually all its capacity to be developed without the NDR if necessary, was equivalent to just such a reserve sites approach. It also lacked certainty, which the Inspector saw as an important advantage of reserve sites and which the Borough Council ignored in its reasons, because the Borough Council said only that it would give "consideration" to allowing the full development of East Hall Farm in the absence of the NDR.
- He further submitted that the Borough Council's second reason for rejecting the recommendation, namely that the reserve sites would lead to an over-provision of housing, similarly failed to grapple with the Inspector's reasoning for his recommendation, which was the avoidance of under-provision. Such over-provision could only occur the Borough Council were to grant permission for further development.
- Thirdly, Mr Dove submitted that the reasons for rejecting the Inspector's recommendations were inadequate because the Borough Council's reference to the Inspector's approach leading to greenfield land releases failed to recognise, as the Inspector on the contrary had himself recognised, that greenfield and high quality agricultural land releases were inevitable at Sittingbourne if the regeneration objectives were to be achieved. These were exceptional circumstances, relevant to Stones Farm, which the Borough Council had not taken into account. Indeed the Council, it was said, had failed to give any reasons other than the illegitimate one, that it wished to avoid a further Inquiry, for its rejection of the specific circumstances at Stones Farm which led the Inspector to recommend its allocation as a reserve site. It had produced nothing to suggest that previously developed land would be available as an alternative. If it were, that would have necessitated examination at a further inquiry.
- Fourthly, Mr Dove submitted that the Borough Council's response to the Inspector's concern about under-provision, which was to monitor and manage housing supply, was further evidence of its failure to understand the Inspector's point about reserve sites, which, because they would only come forward in certain eventualities, was itself a form of monitoring and management, but one which would be set out in the Local Plan itself.
- Fifthly, Mr Dove submitted that it was wrong for the Borough Council to reject the Inspector recommendation as one not discussed in any detail at the Inquiry or as being the Inspector's own solution. That basis for rejection of his recommendation failed to grapple with the Inspector's point, especially, as Mr Dove later submitted, if further discussion were required it could have been provided through the holding of a further Inquiry.
- Mr Dove dealt sixthly with the reasons given by the Borough Council in relation to the Inspector's recommendation that the alignment of the NDR south of the railway should be shown in the Local Plan, and in relation to the interaction between the Inspector's recommendation that Stones Farm should be a reserve site and the provision of the NDR within the plan period. He submitted that the Borough Council had failed to grapple with the Inspector's concern that the road be delivered within the plan period to 2006, and accordingly had explicitly rejected the determination of the alignment south of the railway in the Local Plan Review, the adoption of which was not anticipated until 2006.
- Seventhly, Swale Borough Council had misunderstood the development framework as envisaged by the Inspector. The Borough Council saw the development framework as a means of establishing the alignment of the NDR and bringing forward supportive development. The Inspector, however, had seen that development framework as being effective once the alignment and supportive development had been settled within the Local Plan. The Council's reasoning therefore failed to grapple with the reasons which the Inspector had given for this recommendation, not merely that an alignment of the NDR south of the railway be shown on the Proposals Map, but that it be an alignment to the west of Bapchild.
- The underlying theme to McAlpines' various submissions was that the Inspector had seen the need for the NDR to be completed within the plan period, had recognised the risk that the MKDR connecting the NDR to the A249 would not be built within that time, and that the strategy for developing a new highway infrastructure from the north-west towards the south would fail. Accordingly, a fall-back strategy had to be set out within the Local Plan. This strategy included the reservation of a housing site at Stones Farm, to be activated by a particular date, in certain contingencies, and the commencement then of the NDR from the south, which, albeit the less satisfactory strategy and start point for development and infrastructure provision, would at least enable a start to be made.
- Mr Stoker submitted that all Mr Dove's submissions really went to planning merits and judgment and were not matters of law at all. The Borough Council had fully understood the Inspector's points, both in general and in detail, had disagreed with his approach to the problems of a potential housing shortfall and to delays in the provision of highway infrastructure, but nonetheless had recognised that there was a problem identified by the Inspector with which it had to grapple. It had done so through the development framework and considerations of the full development of East Hall Farm, which, whilst not exactly what the Inspector had envisaged, was nonetheless not wholly different either.
- It enabled the potential shortfall to be monitored, managed and reviewed. It permitted the temporary use of the existing infrastructure at Castle Road, instead of overturning, as Swale Borough Council saw it, a long-standing strategy for the development of the NDR and the MKDR, and for the development of employment and housing from the north west, so as to enable regenerative development and its traffic to access the A249 rather than from the south. Development from the south would mean that the traffic would have to pass through Sittingbourne on the overloaded A2, because until the final link to the north west was provided such development would effectively be development off a cul-de-sac. From the north-west with access to the A249, that would not matter.
- Swale Borough Council rejected the Inspector's strategic approach because it saw not just weaknesses in it, but real difficulties with ensuring that the more expensive parts of the infrastructure would in fact be built. It concluded that the Inspector's approach to showing the road alignment on the Proposals Map was contrary to PPG12, and that testing that alignment through a proposed modification process was an inappropriate approach to a controversial issue. Other ways of examining that alignment were better. It had provided a very carefully considered and detailed set of reasons for its views. It had not simply repeated the position which it had held at the Local Plan Inquiry nor had it misunderstood the Inspector's recommendations.
- In my judgment Swale Borough Council has indeed properly understood and considered the Inspector's recommendations and his reasoning. It has grappled with it and given careful, lengthy and detailed reasoning for its rejection of it views to the extent that it does reject them. Those reasons are intelligible and relevant planning reasons. I say "to the extent which it does reject them" because there is force in Mr Stoker's point that the Borough Council accepted the critical point made by the Inspector that there was a risk of housing shortfall and of non-provision of the road infrastructure. It deals with that in a somewhat different way from that recommended by the Inspector.
- I have to say that there is also force in Mr Stoker's submission that Mr Dove, though I appreciate he would disclaim any such intention, was arguing matters which were very much matters of planning judgment and merit. Of course any reasoning can be criticised on a rational merits basis by those who disagree with it and who would approach the issues from a different viewpoint. But I do not consider that such criticisms here showed any legal inadequacies in the reasoning.
- I turn to Mr Dove's submissions in more detail.
- First, Swale Borough Council is correct in paragraph 30 of the officer's report to point out that reserve sites were recommended by the Inspector, not just to deal with Sittingbourne's particular problems, but as his general solution to a potential housing shortfall elsewhere as well; see, for example, paragraph 10 of his 23rd July 1998 letter enclosing his report, and paragraphs 48 and 50, together with his recommendation on housing land supply.
- Paragraphs 30 to 34 of the Officer's report represent a very careful consideration of this as a general proposition. Mr Dove's criticism misunderstands Swale Borough Council's reasons. The pre-emption of the Local Plan Review would arise even if the reserve site were not required for development in the Local Plan period, because those sites would be seen as having an advantage over other sites precisely because they had been earlier identified as reserve sites. That is the purpose of the statement that the authority would find it difficult not to allocate them in the next Local Plan. This could arise in circumstances where in future other sites, including brownfield or previously developed sites, might be available or where a new housing strategy might be required. One can debate that point, of course; but a legitimate planning point of view it undeniably is and its relevance to the conclusions of the Inspector is plain. The Inspector's approach is not necessarily very different from that of Swale Borough Council, in contemplating bringing forward the full development of the allocated site at East Hall Farm before completion of the NDR. That site has been considered and recognised at the Local Plan Inquiry by the Inspector as preferable to Stones Farm. Allowing a further 350 houses without the NDR, over the 200 contemplated at the Local Plan Inquiry by the Inspector, is only for "consideration", but the lack of certainty over whether permission would be granted for development in those circumstances at East Hall Farm is no greater than the lack of certainty over the prospect of planning permission being granted for a reserve site.
- Secondly, Mr Dove's criticism concerning over-provision and a failure to deal with the Inspector's concern, which was said to be under-provision, again misunderstands the Borough Council's viewpoint. Over-provision could arise because both allocated and reserve sites could be developed in the Plan period. If allocated sites were permitted but not developed, and so reserve sites were permitted, the Borough Council could easily find that both came forward. That is a legitimate planning reason for disagreeing with the Inspector.
- Thirdly, this over-provision is linked to fears about the full extent of greenfield releases, to which this general approach could give rise, at a time when planning policy was seeking to develop greenfield sites only as a last resort, save in exceptional circumstances.
- The Borough Council refers to reserve sites as not being discussed in detail and being the Inspector's own suggestions. It plainly was discussed to some extent, but it is not said by McAlpines that it was discussed in detail. It appears to originate in McAlpines' own evidence rather than from the Inspector. Paragraph 31 of the Officer's report has not been shown to be inaccurate, though paragraph 35 of Mr Lloyd's first witness statement appears to be inaccurate. (Mr Lloyd is the Council's Local Plan Manager). It is true that the HBF have subsequently been shown to support the reserve site concept. There is some force in Mr Dove's criticism of parts of paragraphs 31 and 32 of the Officer's report. However, I do not see that as Swale Borough Council's basis for rejection of the Inspector's recommendation, or, if it is so, that it is one of any real significance, particularly in the light of the extensive concerns expressed in the elaborate reasons which are subsequently given. I see it more as a comment introducing the substantive reasons for the rejection of the Inspector's recommendation.
- Fourthly, Swale Borough Council does consider specifically the exceptional circumstances which were also part of the Inspector's recommendation for a reserve site at Stones Farm. These were the contribution to housing at Sittingbourne, and the contribution of that housing to economic regeneration and infrastructure provision, in particular the NDR. However that issue was part and parcel of the Borough Council's consideration of the strategy for the implementation of the NDR. Housing numbers above the trend requirement were imposed at Sittingbourne, at least in large part, so as to bring about the NDR and thereby to assist in regenerating Sittingbourne. Housing development south of the railway and accessing the A2 without the NDR to the north west could properly be seen by the Borough Council as damage to Sittingbourne, to the A2, and counter to the preferred strategy. This is set out very carefully in paragraph 209 of the Officer's report. The disadvantages of the Inspector's strategy are set out; the reasons given for rejecting it are proper planning reasons. Again, of course, one can debate all the points raised. No doubt there are planning arguments against them, but the reasons given are at least adequate legally.
- Fifthly, the Inspector's recommendation that the line of the NDR to the A2 be put into the Plan was considered in very considerable detail in the last part of paragraph 209 to paragraphs 223 of the Officer's report. It plainly considers the Inspector's points and rejects them for legally adequate reasons. These reasons have to be seen as part and parcel of the Borough Council's strategic approach. The timing of, and development to support, provision of this last part of the NDR is a matter for its development framework. It is entitled to prefer that approach to accepting what it regards as a premature choice of alignment and arguably flawed conclusions as to what the alignment should be.
- It was aware of the timing implications, but, as it said, the effect of delay in provision of the NDR has rather different effects depending upon where the NDR begins. This view on whether the NDR south of the railway should or should not be shown on the Proposals Map and whether it should now be decided whether it should go east or west of Bapchild clearly affects the approach to the Inspector's conclusion that there were exceptional circumstances to justify the inclusion of Stones Farm as a reserve site. The Inspector referred to two exceptional circumstances justifying the release of prime agricultural land in section 5.3 of his report dealing with Sittingbourne housing: that development options to support his recommended alignment were limited and Stones Farm, with that alignment, would represent the logical completion of Sittingbourne, and that the NDR would act as a barrier to the eastward spread of Sittingbourne.
- Of course that argument only holds good if the line south of the railway is fixed. Once it ceases to be fixed and there is then a debate over the precise alignment, including whether it should go east or west of Bapchild, so too goes that exceptional circumstance for including Stones Farm as a reserved site.
- Sixthly, the Council is fully conscious, however, that the Inspector has raised an important point, which it does accept, namely that there was a real risk that what he and the Borough Council agreed should be the preferred strategy would fail. However, it provides an alternative strategy to that suggested by the Inspector to cope with that risk. The Borough Council's alternative retains, in what is its legitimate planning judgment, the fundamental component of what was both the Inspector's and the Council's preferred strategy as to the direction of development, and nonetheless addresses the housing shortfall and the impact of that on financial contributions to support the construction of the NDR. This is set out in paragraphs 224 of the Officer's report. This is a rational response to the Inspector's point and one which represents a reasoned planning judgment to which the Borough Council is entitled to come.
- There is force in Mr Dove's criticism that the reference to accepting the Inspector's recommendation "that the development in North East Sittingbourne should progress in accordance with a comprehensive development framework, with development briefs for each individual site" is not a precise reflection of what the Inspector recommended:
"224. Given this, I consider that the most appropriate way to progress the North East Sittingbourne development proposals is as follows:
* amend the Plan to explain that:
* options for the alignment of the NDR, particularly to the south of the railway;
* future development possibilities (including the remainder of East Hall Farm, land to the south of the 'three lakes', and south of the railway);
* alternative transport options; and,
will be the subject of public consultation through the preparation of the Development Framework. The Development Framework to be prepared as soon as possible after the Local plan is adopted, but in sufficient time to allow the preferred road alignment and development options post 2006 to be included in the first review of the Local Plan."
- The Inspector did make such a recommendation, but he made it in a different context of reserve sites being allocated and a fixed alignment for the NDR between the railway and the A2, which context Swale Borough Council did not accept. Nonetheless, the Inspector did recommend an overall development framework be provided for North East Sittingbourne and he did recommend development briefs be provided for individual sites. I do not consider that imprecision to show a legal flaw on the part of the Borough Council by way of a significant misunderstanding of the Inspector's recommendations.
- Mr Dove also referred to section 36 of the Town and Country Planning Act in this context. This section contains a duty on a local planning authority to prepare a Plan for its area, and provision is made as to what that Plan should contain. Mr Dove suggested that the rejection of the Inspector's recommendation in this instance and reliance on the production of a development framework for North East Sittingbourne involved a breach of that duty. I do not consider that to be a tenable argument. It is clear that the Local Plan does provide for housing, employment and related infrastructure. Development frameworks and development briefs are envisaged in order to provide for a level of detail not considered appropriate for a local plan. In effect the development framework would be a form of supplementary planning guidance, as envisaged in PPG12 "Development Plans". The significant problems in relation to the delayed production of housing and employment development were to be dealt with by a temporary expedient, for example, the use of Castle Road, which was set out in the Local Plan, or by way of early review.
- It would also have been clear that on the Borough Council's approach to the development framework, the last part of the NDR between the railway and the A2 may well not be developed until after 2006 in this fall-back position. However, this would not prevent the NDR being built and providing access to the A249 as it headed south and thus providing much of the benefit which the road as a whole would provide. It is once the strategy is reversed that completion to the north west becomes urgent, because of the increased overloading of the A2 through Sittingbourne. This is plainly the Borough Council's thinking, and it grapples with the basis of the Inspector's recommendation. It is a form of monitoring and managing, and reserve sites could also be seen in that light, albeit of a rather different nature. The Borough Council grappled with the substantial components of the Inspector's recommendation and the reasons for it. It dealt with the limitations which it saw reserve sites as having as a form of monitoring and management, preferring instead the approach which I have set out.
- Seventhly, the Borough Council and Inspector's disagreement over how to deal with the risk of the strategy, which all agreed was best, not coming to fruition, is spelt out. The Borough Council justifies its view that its approach is preferable in the reasons which it gives for rejecting the Inspector's recommendations. It clearly had the Inspector's position in mind and gives adequate reasons for rejecting it.
- Overall, in my judgment, it is not justifiable to say that the Borough Council simply repeated its position without considering and responding to the Inspector's recommendation and reasoning. In my judgment, its reasons grappled with the points, and constitute, at least, legally adequate reasons for rejecting his recommendations and for the decisions to which the Borough Council came.
- Lastly, I should say that I have been provided with much information from both sides as to events after the adoption of the Local Plan. They do not bear on this issue. In particular, I do not consider that what subsequently has happened, or rather not happened, with the MKDR, justifies a criticism of Swale Borough Council's reasons for rejecting Stones Farm as a reserve site. Of course the more remote the possibility of the MKDR being built, the more problematic is the question of development at North East Sittingbourne anyway. But it cannot properly be argued, and though it was in the claim form it was not pursued, rightly, by Mr Dove, that the Borough Council erred in failing to consider as a fact that there were no prospects of a contract for the MKDR being met by the time stipulated by the Inspector for the release of Stones Farm as a reserve site; the Inspector did not consider that to be a fact. If he had known then what now might be known, what he would have said is a matter of pure speculation.
Failure to hold a further inquiry
- I turn now to the second basis of attack upon the Borough Council. Part of McAlpines' case was that the Borough Council ought to have held a further inquiry or a reopened inquiry into objections to the proposed modifications in so far as they introduced a development framework for North East Sittingbourne to be used in planning for that area, and in so far as they introduced the possible use of Castle Road as a means of linking East Hall Farm to the highway network in the absence of the NDR, so as to permit the full potential of 550 houses to be provided, rather than simply the first 200 houses. This was something not considered at the Local Plan Inquiry.
- Mr Dove relied on two authorities in support of this argument. First, I was referred to the decision of the Court of Appeal in Warren v Uttlesford District Council  JPL 1130, in which the Court of Appeal held that the decision on whether to hold an Inquiry into objections to a proposed modification was a discretionary one for the planning authority, taking account of fairness to the objectors and others, rather than a decision for the court. Schiemann LJ held that considerations relevant to the exercise of the discretion included:
"1. One of the matters which the LPA has to consider when deciding whether or no to open an inquiry to consider objections to proposed modifications is whether a decision not to do so will be unfair to the counter-objectors. If it fails to consider the point or comes to a perverse conclusion then its decision is liable to be struck down.
2. For its part, the court in deciding whether or not the decision not to open a new inquiry was procedurally fair, needs to bear in mind the position not merely of the parties before the court but also all others who might be affected by an order of the court quashing the adoption of the plan.
3. The Court In coming to a conclusion as to whether a decision not to open a new inquiry was procedurally unfair must give weight to the LPA's 'view of the general situation' to quote words of Lord Donaldson of Lymington MR in the Guinness case cited above at p. 178. The court will 'give great weight to the tribunal's own view of what is fair, and will not lightly decide that a tribunal has adopted a procedure which is unfair', to quote words of Lloyd LJ from the same case at p. 184."
- Reliance was also placed by both sides on the sort of issues upon the absence of which counsel for Uttlesford District Council had relied in contending that no basis for a further Inquiry existed:
"[Counsel] submitted that a second inquiry could only be justified where the objections to the proposed modifications raised a new planning issue of substance, which by its nature required the independent scrutiny of a further local inquiry and which could not reasonably be viewed as being suitable for consideration by written representations. No such new planning issue or matter was raised by the objections submitted to the Appellants. In particular:
1. No new strategy was identified for dealing with the requirement for Airport related housing;
2. No new sites were identified;
3. No new planning topic was raised;
4. No new expert evidence was advanced or referred to raising issues not addressed previously.
He submitted that there must be new planning issues or material of substance otherwise the new inquiry would be expensive and repetitious to no substantial gain."
- The Court of Appeal, whilst not explicitly accepting those submissions, did conclude that it was not sufficient to make the refusal to hold a new inquiry unfair, that the opportunity had been lost to persuade an Inspector to a different view on essentially the same material as he had already considered.
- Secondly, I was referred to the decision of Mr Robin Purchas QC, sitting as a Deputy High Court Judge, in Drexfine Holdings Ltd v Cherwell District Council  JPL 361 at 372. Mr Purchas dealt with considerations material to the exercise of the discretionary power of a local planning authority to hold an inquiry into objections to proposed modifications. He said:
"Considerations that would generally be material to that decision would include:
(1) whether or not the issue raised had been previously subject to independent scrutiny by an Inspector so as to provide independent evaluation of the opposing contentions;
(2) the current advice in paragraph 69 of annex A to PPG 12;
(3) the practical implications of a second inquiry and, in particular, whether it should potentially be of material benefit to the decision-making process;
(4) delay and the desirability of securing an up-to-date adopted development plan; and
(5) fairness to the objector and to other parties; as with all decisions of this kind, the determination whether or not to hold a further inquiry should seek to achieve fairness, balancing the interests of all relevant parties; however, in the light of the Court of Appeal decision in Warren it is not appropriate in the context of a challenge to a decision whether or not to hold a new inquiry to elevate the consideration of fairness to an administrative law obligation that goes beyond the usual Wednesbury principles."
- I agree with that analysis.
- PPG12, paragraph 22, offers advice to local planning authorities in relation to modification inquiries, which strongly suggests that the key factor for local authorities to consider is whether the objections to the modifications raise new issues which justify a further public Inquiry in the light of the objections which have already been considered by the inspector. Mr Dove for McAlpines submits that it was unfair not to reopen the Inquiry and irrational not to do so. He further submitted that relevant factors, including fairness, were not considered by the Borough Council.
- However, the particular feature upon which McAlpines focused, in its request for a further inquiry in response to the proposed modifications, appears to have been the Council's concerns that reserve sites, including any possible alternative brownfield sites and route options for the NDR south of the railway line to the A2, had not been fully debated at the Inquiry. It did not focus on the Council's fall-back approach to delays in the provision of road infrastructure, whereby the whole of East Hall Farm housing development might have access along Castle Road. This latter point appears to have come into focus for the purposes of this litigation. There also appears to have been a general request for the reopening of the inquiry for proposed modifications to be considered.
- In fact, the basis for the request for a new inquiry was very briefly expressed by McAlpines in its representations to Swale Borough Council. In relation to reserve sites it said, taking it from the Council's summary of the objections, to which no challenge has been made by McAlpines:
"If the Council's concern (which is not accepted) is that reserve sites were not fully debated as an issue, then they have an opportunity to reopen the local inquiry."
- In relation to the route of the NDR south of the railway it said:
"There is no change in circumstances since the Local Plan Inquiry that justifies ignoring the Inspector's recommendation. The issue of the NDR route between Milton Creek and the A2 was considered in full at the Local Plan Inquiry. If route options for the NDR link route to the A2 are judged by the Local Authority to require further investigation, the Council have the opportunity to reopen the Local Inquiry to consider this issue and to allow further consultation."
- No point in relation to the possibility of the full 550 houses from East Hall Farm using Castle Road was raised.
- In that context the reasoning in paragraph 57 of the Officer's report is justifiably equally brief. There is no explicit reference to reserve sites or to the need for a rapid adoption of the Local Plan, as referred to in the GOSE letter to another objection. The reasons deal with the general comment by McAlpines that there should be a reopened Inquiry simply because the Inspector's recommendations were being rejected. Those reasons deal with that point adequately.
- So far as reserve sites are concerned, McAlpines' point was that if the Council was rejecting the recommendation because there had been inadequate consideration of that matter at the Inquiry, then the Inquiry could be reopened. If that had been the basis or even a significant component of the basis for the Council's rejection of the Inspector's conclusion on reserve sites, I would have regarded the Council's approach as containing an error of law. Either the Council would have failed to consider whether that lack of debate at the Inquiry should be made good or the Council would have been illogical in rejecting the Inspector's recommendation for the want of such a debate, at least without an explicit consideration of whether the Inquiry should be reopened to redress that deficiency.
- However, I doubt if the lack of detailed analysis of reserve sites at the Inquiry played any part in the Council's rejection of the Inspector's recommendation, because I see the reference to the debate as being an introductory comment rather than substantive reasoning. It is quite clear that the lack of debate was not of any significance in the light of the other reasons given in the Officer's report for the rejection of that recommendation. It is to be noted that McAlpines, in its response to the proposed modifications and the decisions on the Inspector's recommendations, provided no detailed analysis of the Officer's report, no new evidence and did not suggest on any detailed basis why a further Inquiry could be of value on those issues.
- So far as the road alignment is concerned, there was again no detailed analysis of the Officer's report by McAlpines, or new evidence or detailed argument as to why the Inquiry should be reopened. It was rather that such an Inquiry would enable the issue to be resolved. The Council's reasoning on the rejection of the Inspector's recommendation essentially deals with this point: it is not necessary for the route south of the railway to be fixed now and it is not desirable for such a controversial and detailed matter to be dealt with through the medium of a proposed modifications Inquiry. The Borough Council explicitly deals with the objections to the alignment being shown on the Proposals Map at all, to it being shown along the alignment which the Inspector recommended, and refers to the fact that the Inspector's recommendation would lead to a second Inquiry. This is an approach which the Borough Council rejects for extensive and relevant reasons and which it adopted an alternative strategy to avoid (see paragraphs 209, 215-219, and 224 of the Officer's report).
- In summary, the Borough Council's point was that there must be a much longer process of consultation through the development framework and review of the Local Plan than would be possible or desirable at this stage. This is a rational response to McAlpines' suggestion, which in essence is all it was, that there should be an Inquiry into the proposed modifications.
- Finally, the possible full development of East Hall Farm, so that a further 350 houses could be accessed off Castle Road, needs to be considered. As I have said, this was not itself a point made by McAlpines in response to the proposed modifications and the decisions on the Inspector's recommendations. The Borough Council cannot be criticised legitimately for not considering reopening an Inquiry or holding a further Inquiry in order to deal with that point when it was not explicitly asked to do so. Moreover, as Mr Dove said, this argument really was part of showing that the Borough Council had failed to appreciate the critical timetable for provision of the NDR and the need to deal with the potential shortfall in housing as envisaged by the Inspector. As I have already said, the Borough Council did deal with that by adhering to the preferred strategy for the construction of the NDR and MKDR, because it concluded that the early provision of the southern leg of the NDR as a cul-de-sac leading to the A2 was not the right strategy, and by dealing with the housing shortfall through alternative mechanisms. The Inquiry had considered, and indeed there had been general agreement over, the use of Castle Road by 200 houses from East Hall Farm. An additional 350 was not a wholly new point. The further detail of the impact of that traffic would have to be considered on any application for planning permission. But in the absence of an explicit reasoned request for a further Inquiry, I find nothing irrational or unfair in the fact that the Inquiry was not reopened or a further Inquiry held to deal with that point. Nor is there anything unlawful about the absence of explicit reasoning by the Borough Council on whether that potential use by 350 house justified reopening the Inquiry.
- For those reasons, the domestic planning law challenge by McAlpines fails.
THE HUMAN RIGHTS ACT
- I now turn to the Human Rights Act arguments. Both Bovis and McAlpines sought to argue that their human rights were determined by the decisions embodied in the policies, allocations or non-allocations and designations of the two Local Plans.
- Bovis submitted that the effect of the 1998 Act and Article 6 of the European Convention on Human Rights meant that the District Council could not reject the recommendation of the independent Inspector, except in particular circumstances, which did not apply here. McAlpines went further and submitted that the Local Plan process was incompatible with its Article 6 Convention rights because its rights were determined by a partial tribunal, the Council, and not by the independent Inspector. They submitted that although the Council had no option but to act in the way which it did because of the primary legislation, that primary legislation was incompatible with Convention rights, and a declaration of incompatibility under section 4 of the Human Rights Act 1998 ought to be made.
- Mr Elvin QC for the Secretary of State submitted that the Human Rights Act 1998 could not be relied on at all by Bovis because the New Forest District Local Plan had been adopted on 10th November 1999, or by McAlpines, because the Swale Borough Local Plan had been adopted on 20th July 2000, both dates preceding the coming into force of the 1998 Act on 2nd October 2000. Mr George and Mr Dove submitted that section 22(4) of the Act, which provides for it to have a limited retrospective effect, applied so as to permit them to rely on the Act.
- The relevant provisions of the 1998 Act are as follows:
"6. Acts of public authorities
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right ...
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may --
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings ...
(6) In subsection (1)(b) 'legal proceedings' includes --
(a) proceedings brought by or at the instigation of a public authority; and
(b) an appeal against the decision of a court or tribunal.
Section 22(4) provides that:
... paragraph (b) of subsection (1) of Section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section."
- Mr Elvin submitted that the limited retrospectivity only applied to "legal proceedings" which connoted, and in this context meant, because of section 7(6), "proceedings in a court or tribunal", and that those legal proceedings must have been instigated by a public authority. Both sets of legal proceedings were instigated by the developers under section 287 of the 1990 Act, and not by the Councils. The local plan process had already concluded and could not be regarded as a continuing process, instigated by the local planning authorities which then encompassed the section 287 challenge.
- Mr Elvin relied on three decisions. First, Mabey v Secretary of State for the Environment  ADC 49, in which Harrison J, on a section 289 enforcement notice challenge to an Inspector's decision of February 2000, contrasted the date after which proceedings were to be instigated (2nd October 2000 or later) with the date when the act which was the subject matter of those proceedings took place (1st October 2000 or earlier). He held that the enforcement notice appeal had concluded before October 2000 and that the section 289 challenge was not part of a continuing process, unlike, for example, injunction proceedings in support of the enforcement notice. Second, Mr Elvin relied on Anscombe v Secretary of State for the Environment  EWHC Admin 100, in which Turner J held that section 288 proceedings were not different in effect from section 289 proceedings. They were not part of a continuing process, nor were they instigated by a public authority. The same, submitted Mr Elvin, also applied to section 287 proceedings.
- Thirdly, Mr Elvin referred to Dyason v Secretary of State for the Environment, Transport and the Regions (25th October 2000), in which Scott Baker J reached a similar conclusion also in relation to a section 288 challenge. Mr Harwood and Mr Stoker for the local authorities supported those submissions.
- Mr George submitted that section 7 of the 1998 Act should be given a broad interpretation. The provisions should not be limited to "legal proceedings".
- The provisions for statutory challenge to the adoption of a local plan were part of the whole plan-making statutory process. Indeed, the whole process, for the determination of objections which could be significant for land values, should be seen as a continuous process. He drew some support from R v Director of Public Prosecutions ex parte Kebilene  2 AC 326 in which Lord Steyn at page 368B-C treated section 22(4) with section 7(1)(b) as not being confined to the criminal trial, but also as covering the subsequent appeal. However, in R v Lambert [2001 UKHL 37, 5th July 2001, it was held that on an appeal after 2nd October 2000 against a conviction which preceded 2nd October 2000, the Convention did not have retrospective effect. A limited rather than a broad approach to section 22(4) was taken.
- Mr Dove emphasised the need to see the Local Plan process as a continuing process, made up of all the steps, including statutory challenge, provided for by the 1990 Act. In particular, he relied on the failure of Swale Borough Council to hold a second local Inquiry, which was, he said, a continuing failure. He also submitted that the power of the court to make a declaration of incompatibility under section 4 of the 1998 Act was not affected by Mr Elvin's submission. What mattered for that purpose was that this court was dealing with the application for a declaration after 2nd October 2000. By the same token, Mr George submitted that he could rely on section 3 of the 1998 Act, which imposes on the court an obligation to construe legislation so far as is possible in a way which is compatible with Convention rights. The effect of the limitation on retrospectivity was confined to the quashing of unlawful acts.
- In my judgment Mr Elvin's submissions are largely correct. The limited degree of retrospectivity provided in the 1998 Act does not call for a broad approach. Indeed, that which was approved in Lambert is quite the reverse, with a distinction drawn between conviction and appeal which could be regarded as somewhat technical. At least the decision in Lambert is inconsistent with an approach to the local plan process, which would include the availability of a challenge under section 287 as part of a single continuous process.
- Mr George and Mr Dove's submissions are inconsistent with the narrow remit of section 22(4) and section 7. Those provisions do not extend beyond court or tribunal proceedings, so as to encompass e.g. the depositing of a draft plan and the various procedural steps leading to its ultimate adoption, including decisions about reopened Inquiries. To hold otherwise would be to give "legal proceedings", which are the "proceedings" with which section 22(4) is concerned, an unduly wide meaning. Section 7(6)(a) covers only "legal proceedings". It is clearly related to the type of proceedings which can be the subject of an appeal for the purposes of section 7(6)(b). This too is consistent with section 11. Neither the plan process itself nor the reopening of an Inquiry constitute "proceedings". It is clear what the purpose of that limited retrospectivity was. It enabled people to defend themselves against legal action which had involved a breach of their human rights, but did not allow the positive assertion of those rights at an individual's initiative. The legal proceedings must be instigated by a public authority. Plainly the two claimants do not fit that category for the purposes of section 287. I do not consider that that gap can be bridged by treating those proceedings as an inherent part of the plan-making process. Nor can it be bridged by treating a refusal to reopen the plan process as proceedings or as proceedings instigated by the Council. Were that so, section 22(4) would simply be sidestepped.
- The above approach is consistent not just with Lambert, but also with the three first instance decisions to which I have referred, the consistent jurisprudence of which I would have been inclined to follow even had I disagreed with it, which I do not.
- I recognise that the role of the Court is an integral part of compliance with Article 6 for the whole process, if indeed civil rights are being determined in the course of it. But section 22(4) and section 7 have together drawn a distinction between two components for the purpose of examining the limited retrospective effect which the Act envisages.
- Mr Dove and Mr George are right however in their submissions that sections 3 and 4 of the 1998 Act apply to these cases because the court is dealing with them after October 2000. This involves no retrospectivity, and section 6(7) and 22(4) are not relevant for those purposes. (In the light of Court of Appeal decisions which have come to my notice since I delivered judgment, this paragraph is now to be doubted.)
- Mr George also submitted that even if the 1998 Act were inapplicable because of the date of adoption of the Local Plans, he was nonetheless entitled to have the Convention taken into account as a material consideration in the resolution of any ambiguities in the relevant statutory provisions. I deal later with whether any Convention rights are in fact engaged so as to bring any such principle into play. However, I did not find any relevant statutory ambiguities or indeed uncertainties in the scope of the relevant principles of public law such as would have enabled any such Convention rights to be deployed in their clearer resolution. I do not consider that any Convention rights would have assisted in the conclusions which I have reached on the domestic law planning challenges.
- Of course such arguments in relation to the Town and Country Planning Act, the Local Plan process and the ECHR have been available for many years, but never, so far as I am aware, deployed in relation to Local Plan decisions.
- If it is considered that the rights contained within Article 1 of the First Protocol are engaged, it is conceded by Mr George that the Town and Country Planning Act 1990 constitutes a legitimate restriction for the purposes of Article 1(2). The Convention brings in no new right, nor does it require more reasoning so far as the Local Plan process is concerned. The duty to reach rational decisions expressed with reasons exists regardless of Article 1, Protocol 1. This is not altered after 2nd October 2000 even if post Human Rights Act, Convention rights have become domestic rights for the purposes of Article 6.
Civil rights and their determination
- I now turn to the question of whether any civil rights are engaged and determined in the local plan process. The claimants contended that the adoption of the Local Plans was indeed a determination and of their civil rights. The Secretary of State contended that it was neither.
- Article 6(1) of the European Convention on Human Rights provides:
"In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time, by an independent and impartial tribunal, established by law."
- I take as my starting point for the consideration of these issues the decision of the House of Lords in R (Alconbury Developments Ltd and Others) v Secretary of State for Environment, Transport and Regions  2 WLR 1389. This decision holds that the determination of planning applications engaged Article 6(1) because those determinations determined or affected civil rights even though the process whereby they did so was an administrative one (see Lord Slynn at paragraph 41 and Lord Hoffmann at paragraphs 79 and 135). Lord Clyde said at paragraphs 148 to 150:
"148 The scope of article 6 accordingly extends to administrative determinations as well a judicial determinations. But, putting aside criminal proceedings with which we are not here concerned, the article also requires that the determination should be of a person's civil rights and obligations. ...
It relates to rights and obligations 'which can be said, at least on arguable grounds, to be reconsidered under domestic law: James v United Kingdom (1986) 8 EHRR 123, para 81. The rights with which the present appeals are concerned are the rights of property which are affected by development or acquisition. Those clearly fall within the scope of 'civil rights'. But there is no issue about the existence of these rights and no determination of the rights in any strict sense is raised.
149 The opening words of article 6(1) are: 'In the determination of his civil rights and obligations or of any criminal charge against him ... ' Here again a broad interpretation is called for. The decision need not formally be a decision on the rights. Article 6 will still apply if the effect of the decision is directly to affect civil rights and obligations. In Le Compte, Van Leuven and De Meyere 4 EHRR I, para 46 the court observed: 'it must be shown that the 'contestation' (dispute) related to 'civil rights and obligations', in other words that the 'result of the proceedings' was 'decisive' for such a right.' The dispute may relate to the existence of a right, and the scope or manner in which it may be exercised (Le Compte, at para 49, also Balmer-Schafroth v Switzerland (1997) 25 EHRR 498. But it must have a direct effect of deciding rights or obligations."
- He continued in paragraph 156 that the civil rights in question were "rights to use land which may be the subject of development or of compulsory acquisition". He recognised that those rights were not merely not unqualified, but were subject to the planning regime under which planning permission was not in general a matter of right.
- Lord Hutton referred to a number of planning enforcement cases which had been before the European Court of Human Rights, in which the civil rights of property were determined because such proceedings were directly concerned with the way in which an owner was entitled to use his land (paragraphs 182-4).
- It is apparent from all these references that Article 6(1) is not engaged and that a civil right is not being determined, simply by virtue of the fact that an administrative decision is being made. It is not enough to engage Article 6 that there be a public law right to have a planning application or an objection to a local plan processed in a particular way, or that there be a right to seek judicial review of that administrative process. It is necessary, rather, that that process determine or directly affect an arguable civil right.
- It is clear that an enforcement notice and a decision on an enforcement notice appeal determine or directly affect the civil right to use and to enjoy property. Likewise, a determination that planning permission was not required for a particular development would equally determine or directly affect that civil right. Although there is no right to a planning permission or a right to develop land for a purpose which requires planning permission, the grant or refusal of planning permission determines or directly affects the civil right to use or enjoy land, because it can be seen as removing a statutory restriction on that underlying right, pursuant to the exercise of a discretionary power which the landowner and others can invoke. It is also clear that a Compulsory Purchase Order is regarded as determining or directly affecting civil rights, even though the legal effect of a CPO is to empower the compulsory transfer of land, which power may in fact never be exercised, rather than directly to effectuate the transfer. Land subject to a confirmed CPO can still lawfully be transferred to a third party, though in practice a confirmed CPO acts as a real deterrent to a sale and certainly to a sale at a market price.
- I turn from what assistance those considerations afford to examine those matters in the context of the local plan process and its impact on the circumstances of these claimants.
- The claimants contend that their pecuniary rights are affected and that their civil property rights to use and develop land are affected.
- I first turn to examine the nature of the ownership of the land in question. I do so because although it is not necessary under the Town and Country Planning Act 1990 for the applicant for planning permission to have any legal interest or contractual right in land, it is difficult to see how an applicant without such interest or right can have his civil rights determined, given that such civil rights are not alone constituted by the right to make an application for planning permission. I was told by Mr George - and I accept - that Bovis owns most of the land north of Totton and has options over the bulk of the rest. The terms of those options are not in evidence. I accept that the NFHA designation is a long-term and very restrictive designation, which would make the residential development of this land a more remote prospect than it otherwise would be. I also accept Mr Harwood's point that even without that designation the Inspector and District Council had rejected a residential allocation and that it was very debatable whether the land would ever come forward for residential development anyway. All this material was presented without evidence as to the nature of the rights enjoyed by Bovis pursuant to its options and without evidence as to any asserted impact in any form, whether as to saleability, financial loss or diminution of the value of the land the subject matter of the contested designation. The real impact might be nil. I regard that as a very unsatisfactory basis for Bovis' assertion that its civil rights have been decisively determined or directly affected so far as any land covered by the options is concerned. The points in relation to saleability, financial loss and diminution in value apply also to the land which it owns. The effect of a Local Plan designation, by contrast with other designations or directions with which European Court of Human Rights jurisprudence has been concerned does not preclude or require a disposal of the land. Nor does it of itself entail restrictions on the use or development of the land, although it is possible that directions restrictive of development rights could subsequently be made by reference to its area. As I have said, it makes the prospects of obtaining planning permission more remote to an uncertain degree by comparison with the restrictions applicable anyway in the countryside, but it does not preclude an application being made which the local planning authority or the Secretary of State on appeal would have to consider.
- So far as McAlpines is concerned, it has an option over Stones Farm; the terms of the option including whether it is exercisable only upon the grant of planning permission or upon some other event, are not in evidence. The effect of the non-allocation of the land will probably have some pecuniary effect on its value to the landowner. It is not clear what pecuniary effect it would have on the option holder or on the exercise of its contractual rights. Again it is not satisfactory for evidence as to the nature of civil rights said to be determined or directly affected, or as to the way in which it is said the adoption of the Local Plan determines or affects those rights, to be so limited. McAlpines' argument simply assumes that there is no difference between the position of a landowner and an option holder. The nature of the contractual rights is wholly unclear. It must at least be for question whether they confer on an option holder the right to use or enjoy or develop land, the very property rights said to be determined by the local planning authority's decisions.
- However, I shall deal with these issues on the basis that it is not appropriate to draw a distinction in this context, in the light of the evidence and arguments before me, between the landowner and option holder, though I reach no decision to that effect.
- I accept Mr Elvin's submission that a pecuniary effect does not of itself demonstrate that proceedings are determinative of civil rights. The pecuniary effect must arise from acts determinative of civil rights. It is necessary to identify rights which are determined and not just effects. He submitted that part of Mr George's and Mr Dove's submissions fell into that error.
- In Editions Periscope v France (1992) 14 EHRR 594, at paragraphs 34 to 40, the European Court of Human Rights held that the arguable right to compensation for a fault on the part of the French authorities in the discriminatory refusal of tax concessions, involved a pecuniary action founded on an alleged infringement of rights, which in that case were pecuniary rights. Mr Dove relied on the reference to "actions founded on infringement of pecuniary rights or where the outcome was decisive for such rights". He submitted that because there was a pecuniary effect therefore there was an infringement of pecuniary rights. In my judgment that misunderstands the authorities. They hold no such thing. The pecuniary effect is only relevant provided it infringes or arises from the infringement of pecuniary rights, which must derive from some source other than the pecuniary effect itself. Other authorities are consistent with that approach.
- In Pierre-Bloch v France (1998) 26 EHRR 202, a national assembly member forfeited his seat because of excessive campaign expenditure, causing him the financial loss of his salary, the loss of future earnings and the cost of reimbursing his excess expenditure. He complained that his hearing before the Constitutional Court had been unfair. The European Court of Human Rights held in paragraph 51 that no civil right was at stake. The economic or financial aspects of his case did not of themselves make the disqualification civil proceedings within Article 6(1).
- The decision of the European Court of Human Rights as to admissibility in Moore v United Kingdom 15th June 1999 is also instructive. The applicant claimed that his property rights had been infringed, because the blighting effect of a major development approved in a statutory structure plan had made his house saleable only at a significantly reduced price. The court was ready to assume that an interference with his ability to sell his property was an interference with his right to the peaceful enjoyment of it, although no breach of his Article 1, Protocol 1 rights was in fact committed, because the restriction was not disproportionate to the end. On Article 6(1) it held that whilst the right of property is a civil right, there had to be a dispute over a civil right arguably recognised in domestic law. Article 6(1) guaranteed no particular content for the civil rights. It is clear that the mere fact that Mr Moore had been unable to sell at the price which he might otherwise have obtained, and had no right to compel the purchase of his property did not mean that any domestic civil right was engaged. His real complaint was the lack of the sort of property right which would have protected him against financial loss caused by a designation of land in the structure plan. Accordingly, it is clear that a mere pecuniary impact is insufficient to engage Article 6(1).
- I turn now to the civil right to use and develop property.
- The claimants highlighted section 54A of the 1990 Town and Country Planning Act. This provides:
"^ Where, in making any determination under the Planning Act, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."
- I was also referred to the provisions of PPG1 "General Policy and Principles":
"1. It will frequently be the case in relation to a particular development proposal that several economic, environmental, social or other factors need to be taken into account. This requires a framework which promotes consistent, predictable and prompt decision making.
2. At the heart of this framework are development plans which aim to give a measure of certainty and predictability to the system.
39. In all cases where the development plan is relevant it will be necessary to decide whether the proposal is in accordance with the plan and then take into account other material considerations.
41. The objectives of the plan led system can be summarised as: ensuring rational and consistent decisions, achieving greater certainty, securing public involvement in shaping local planning policies ..., reducing the number of misconceived planning applications and appeals. Because of the role of the development plan in determining the future location of development, it is important that anyone with an interest in the future pattern of development in the plan area shall participate in its preparation and help to influence his emerging policies. Anyone has the right to object to plan proposals prior to their adoption or approval."
- Those provisions illustrate the importance of the local plan in development control decisions. Indeed, paragraph 41 applies to the structure plan and to the unitary development plan system as well. The structure plan provides the framework for the local plan.
- Mr George also drew attention to the remarks of the Court of Appeal in Carpets of Worth v Wyre Forest District Council  62 P&CR 334. Purchas LJ said page 345-6:
"The zoning of any particular area as a green belt sterilises that area, except for the limited category of purposes listed in para 5 of Circular 42/55. It therefore provides a kind of planning blight and must be an exception to PPG1 para 15, the area of which should not be extended unless it is necessary for the purposes of the green belt as defined in PPG2.
As it directly prejudices landowners in the otherwise property development of their land an extension to the green belt should not be brought into effect unless it can be justified directly by those purposes for which the green belt is designed. There must therefore be an inhibition in extending a green belt so as to avoid sterilising unnecessarily neighbouring land..."
- It is not possible to deny the importance of the plan led system to the process of development control, or hence its effect on property values through its effect on the prospects of obtaining planning permission. Of course many policies will be quite general. Others may be or amount to specific proposals for specific developments or specific locations. Some decisions in the course of the local plan process will involve rejecting or postponing other such proposals. Some designations, such as a Green Belt, can affect wide areas and all the landowners within it. Decisions to alter its boundaries may affect but a few. These proposals or policies may create or remove develop expectations and they may blight or protect the value of property. Changes from plan to plan may have the reverse effect.
- What Mr Elvin for the Secretary of State, Mr Harwood and Mr Stoker emphasised was that the local plan did not and could not of itself determine property rights because it did not amount to the grant or refusal of planning permission and did not prevent applications being made, or, in the case of allocations, avoid the need for planning permission to be obtained. The system for determining planning applications, with its appeal rights and obligations in sections 70 and 54A on decision makers to have regard to all material considerations, provided the opportunity for permission to be considered. This meant that the local plan could not of itself be decisive or determinative of any civil right. The impact of the local plan on the prospects of success for any planning application could not be decisive of civil rights, however significant that impact, because there always remained a discretion in the decision maker, to be exercised having regard not just to the plan, but also to all material considerations which could override the conclusion to which the plan would otherwise lead.
- Civil property rights to use land in the current manner or in any manner which did not require planning permission, for example by agricultural use, or to dispose of land or to create interests in land, were unaffected by the local plan. Although a local plan could affect pecuniary values, it could not affect the current use or enjoyment of land, it could not affect development which did not require planning permission, nor the right to seek planning permission, nor could it affect ownership rights. It did not require land or indeed empower land to be sold or purchased compulsorily. It was, as held in Alconbury, planning permission which was decisive. Implicit in the Secretary of State's submissions was the argument that there could not be scope for two decisions sequentially each determinative of civil property rights.
- The claimants submitted that the Secretary of State was focusing on the form of decision making, not its substance, in the light of the Secretary of State's guidance in PPG1. The claimants put considerable stress on the language of Lord Hoffmann and Lord Clyde in the Alconbury case. Lord Hoffmann at paragraph 79 said:
"The court has not simply said, as I have suggested one might say in English law, that one can have a 'civil right' to a lawful decision by an administrator. Instead, the court has accepted that 'civil rights' mean only rights in private law and has applied article 6(1) to administrative decisions on the ground that they can determine or affect rights in private law."
- It is the last phrase which is emphasised by the claimants.
- I have already referred to the passage in Lord Clyde's speech at paragraph 149 which is relied on in this context. Again the claimants emphasise the words "Article 6 will still apply if the effect of the decision is directly to affect civil rights and obligations". The decisions embodied in local plan proposals or decisions, if not decisive, at least affected civil rights.
- Both sides contended that European Court of Human Rights jurisprudence in relation to the Austrian, Swedish, Dutch and Finnish systems of development control were of assistance. They do relate, however, to rather different legislative structures for plan making and development control from those in the United Kingdom.
- The claimants particularly relied on three cases. In Jacobsson v Sweden (1989) 12 EHRR 56, Jacobsson argued that prolonged building prohibitions were unlawful and that he had no means of challenging their lawfulness in court. The prohibitions in effect prevented him applying for a building permit. Thus his basic human rights had been breached because of the effect of those prohibitions on his property rights. Although in the absence of such a prohibition he had no right to a building permit and any application for one would still have been subject to an examination for suitability (though on narrower grounds than the general town planning factors), the court concluded that the dispute over the lawfulness of the prohibitions was a dispute over civil rights and one civil in character (see paragraphs 69-71 and 73):
"69. In view of the wide discretion left by the Swedish Parliament to the administrative authorities in these matters, the Government further maintained that the applicant could not claim any 'right' to build before a permit had been granted.
The Court considers however that, subject to meeting the requirements laid down in the 1947 Act and the 1959 Ordinance, he could arguably have claimed a 'right' to such a permit. True, the issue of a permit under these circumstances would have involved the exercise of a certain discretion by the authorities, but their discretion would not have been unfettered: they would have been bound by generally recognised legal and administrative principles.
70. Pointing out that the prohibitions at issue affected the rights of a great number of other property owners, the Government alleged that the dispute in the applicant's case thus came to have connections with his 'right' to build that were so remote and tenuous as to make Article 6 inapplicable.
There can, however, be no doubt that the prohibitions severely restricted the said 'right' and that the outcome of the proceedings whereby he challenged their lawfulness was directly decisive for this exercise thereof.
71. There was thus, as was also maintained by the Delegate of the Commission, a dispute over a 'right'."
- The claimants submitted that this did not involve any de jure prohibition test.
- However, I note that the provisions for building prohibitions and permits were distinct from the master plans, area plans, building plans and town plans. The building prohibition in question applied in the interim, pending consideration and adoption of a town plan. Exemption from the prohibition could be granted if it would not "obstruct", which I assume means "prejudice" or "pre-empt", the planning process. Although whether "obstruction" was proved, involved a matter of judgment, there was no discretionary power to grant an exemption if the planning procedure would thereby be obstructed. With a long prohibition, the ability to move to the stage of applying for a building permit, which would be measured against its "suitability", did not exist.
- Therefore, the European Court of Human Rights approached the matter on the basis that the effect of the prohibition was to impose a severe legal restriction on applications for building permits being made in circumstances in which they would otherwise be granted (even though under the Swedish system an application for a building permit could be considered as including an application for exemption from a building prohibition).
- I do not consider that this case assists the claimants. The local plans would not provide a legal restriction on the circumstances in which a permission could be applied for or granted.
- In Oerlemans v Netherlands (1991) 15 EHRR 561 the applicant was a cattle farmer. In 1982 the Dutch Minister of Culture, Recreation and Public Works designated as a protected natural site an area which included land belonging to the applicant. According to the designation order the use of farmland could continue as usual, although certain activities which had not previously required authorisation were made subject to authorisation, that is to say it involved a change in the legal powers that governed the use of land. The government urged that there was no dispute until the authorisation had been refused or compensation denied and the effect was tenuous:
"46. The Court is not persuaded by this reasoning. In the first place, there existed a dispute concerning the lawfulness of the designation order. In the second place, the legal consequences of the designation order were that the applicant was no longer free to cultivate his land as he saw fit and was required to seek an authorisation from the Minister for various purposes, for example if he sought to alter or intensify existing use or carry out certain farming activities such as clearing or ploughing the land or using herbicides. The extent to which he was restricted in his use of his land can be seen from the subsequent disputes that he had with the Minister concerning work that he had carried out or proposed to carry out. There thus existed a serious dispute in the present case concerning the resultant restrictions on the applicant's use of his property. ...
47. The Government also pleaded, in the alternative, that there was no right of a'civil' character at issue.
48. However, in the light of the Court's case law there can be no doubt that the property right in question was 'civil' in nature within the meaning of Article 6(1)."
- The claimants submit that this is equivalent to a local plan and shows that civil property rights were affected. Mr Elvin submits that two factors were present: first, a dispute over the lawfulness of the designation and, secondly, the effect of the designation in requiring an authorisation for that which hitherto had required no authorisation, and it was on that basis that civil rights were there determined. Mr Elvin submitted that this contrasted with the local plan situation here. There was, he submitted, a crucial distinction between an area designation as in Oerlemans and a local plan, in that a local plan did not of itself entail any de jure activity prohibition, that is to say it did not have the effect of requiring a person to apply for consent for something which previously they would not have required consent for. I agree that Oerlemans is not a parallel to the present circumstances.
- In Ortenberg v Austria (1995) 19 EHRR 524 land adjoining the applicant's home had been designated as building land in the land use plan and a year later for terraced houses in the development plan. Subsequently a building permit was issued. The applicant appealed against all three decisions, complaining of the nuisance which the traffic generated by the development would cause her. The court said:
" 26.In the above court proceedings the applicant attempted to prevent construction on land adjoining her property by claiming - before the Constitutional Court - that the planning consents relating to two of the houses interfered with her constitutional rights and that they applied unlawful norms. The Constitutional Court, after norm control proceedings to review the area zoning plan and the building plan at issue, rejected the applicant's constitutional complaints. Before the Administrative Court she made public law objections that he subjective rights had been affected. In particular, she alleged that the noise which would affect her property as a result of traffic movements along the proposed private drive (which ran immediately next to the applicant's property) would constitute a 'considerable nuisance'.
27. The applicant submits that Article 6(1) of the Convention applies.
28. The Government submit that Article 6(1) of the Convention is not applicable to these proceedings. The sole link between the proceedings and any property rights of the applicant was the public law interest which she was able to put forward in the proceedings."
- The claimants submit that this supports their case. The applicant's civil right was directly affected because of the close link between her public law rights of objection and the value of her property. The Secretary of State submits that this should be seen as a case concerning objections to planning permission as the equivalent of the building permit, rather than to a Local Plan. The applicant's case did not end up as a case concerning the original land use and development plans. The European Court of Human Rights was solely concerned with the statutory right to object to development and to the effect of development on her property rights.
- I agree. To my mind this shows how a decision on a planning permission or on objections to a planning application can directly affect property rights in the enjoyment of land. It does not support any contention that the effect on pecuniary value alone suffices to show a determination of civil rights, nor any contention that a decision short of planning permission can directly affect civil rights.
- Whilst those cases do not support the claimants' contentions, they do not show them necessarily to be wrong either, even though if the claimants were right, opportunities might have been taken in Jacobsson and Ortenberg to attack the other underlying plans. In the latter case, the Commission concluded only that the challenge to the constitutionality of the plans did not determine civil rights.
- The Secretary of State relied on a number of other cases in support of his submission that the local plan process was not determinative of civil rights. In Uuhiniemi v Finland App No 21343/93, a Commission decision on admissibility, the Finnish Council of State adopted "in principle" a shore conservation programme. The intention was to conserve a privately owned area of land by establishing nature conservation areas. The effect of such a decision is important. The Finnish Supreme Administrative Court described it as follows:
"... Although the programme does not in itself prevent the granting of a building permit, an activity prohibition issued by a County Administrative Board (laaninhallitus, lansstyrelse) prevents the implementation of a construction project for which a permit has already been granted. ... Whilst the adoption of the programme has not [as such] entailed the entry into force of a prohibition on building or construction, it has resulted in a de facto expropriation threat which forces the property owner not to make use of his property in a manner contrary to the programme. At the same time it gives the County Administrative Board the right to issue an activity prohibition pursuant to section 18 of the [the 1923 Act] in order to secure the aim of the redemption.
... The programme is not such a national plan of higher rank or other plan as would have a binding impact on regional, general or other planning. The programme can guide the planning as a document of reference on the basis of which [the authorities] attempt, in pursuant of... the  Building Act [rakennuslaki 370/58, byggnadslag 370/58; hereinafter 'the 1958 Act'], to harmonise regional and general planning with national planning within the framework of State supervision. For these reasons ... the decision of the Council of State is not unlawful as being incompatible with the planning system set out in the [the 1958 Act].
The effects ... on construction and forestry are not of such immediate nature that they would follow in a legally binding manner directly from the decision of the Council of State. The immediate legal effects are caused only by [subsequent] planning and building prohibitions for planning purposes, by decisions made in accordance with [the 1923 Act] on request by an individual property owner or, if the property owner acts in a manner contrary to the aims of the programme, by prohibitions and redemption decisions issued in accordance with [the 1923 Act]. In all these stages of implementation of the programme the parties are to be heard in accordance with legal provisions, the decisions are to be made in a procedure... prescribed by law and the decisions are appealable. When compulsory measures are resorted to pursuant to [the 1923 Act] the property owners and others who suffer damages shall be entitled to full compensation for the losses. Those seeking voluntary conservation may on request be granted compensation for the restriction of their right of usufruct to the land remaining in their possession."
- It is clear from the findings of the Ombudsman that despite the very limited direct legal effect of adoption, it had a practical effect:
"- that the threat of expropriation following from the adoption of a nature conservation programme as well as possible building and activity prohibitions are likely to result in the absence of other buyers than the State, thus negatively affecting the property owner's position in the negotiations concerning the price of his property;
- that the programme has not entailed the transfer of any property by rights; but
- that it has resulted in a de facto expropriation threat forcing the property owners and others concerned to abstain from using their properties in a manner contrary to the programme, thus creating de facto restrictions on their right to use their properties."
- Indeed the applicants complained of the effect of the adoption of the shore conservation programme in language reminiscent of, though more forceful than, that deployed by the claimants here:
"2. The applicants further complain that their right peacefully to enjoy their possessions has been violated in several respects as a result of the adoption of the shore conservation programme.
Moreover, already the publication of the draft shore conservation programme had the immediate effect of restricting the applicants' use of their properties for an indefinite period of time, thus causing the financial losses, but without their receiving any compensation. The restrictions were partly based on the allegedly unlawful amendments to the 1959 Decree which entered into force on 1 June 1990. In particular the properties are now impossible to sell except to the State which may therefore 'dictate' the conditions. In the above circumstances the ownership of the applicants' properties has become so precarious that the properties have been de facto expropriated by the State. The applicants invoke Article 1 of Protocol No 1.
3. The applicants furthermore complain that the expropriation threat imposed on them amounts to an unlawful criminalisation of the use of their properties. They point out that already the lodging of a request for a building permit could entail the expropriation of their properties. In this respect they invoked Article 7 of the Convention. "
- The Commission concluded that a dispute over the lawfulness of the shore conservation programme and allegedly related restrictions on the applicants' use of their properties, concerned the right of property, which was clearly a civil right. The Commission, however, concluded that the conservation programme did not itself entail any de jure activity prohibition served on individual property owners and restricting the applicants' rights to use their properties without prior authorisation.
- The Commission referred to the decisions in Oerlemans by way of contrast and also to Jacobsson. It also pointed out that the programme did not entail a refusal to authorise certain use of the property or a revocation of any permit already permitting a certain use of the property. Finally, the Commission pointed out that the programme neither constituted the issuing of an expropriation permit, nor did it amount to an amendment of a plan capable of otherwise extinguishing any of the applicants' property rights. It said that it had not been shown that the use of any of the applicants' properties had been restricted solely on the basis of the conservation programme:
"The Commission therefore concludes that in the particular circumstances of the present case the dispute at issue was not directly decisive for the applicants' 'civil rights'."
- Accordingly, civil rights were engaged but not determined.
- Mr Elvin submitted that there was a strong parallel to the situation here, and if in that case civil rights were not determined, even less so would that be the position in relation to the local plan process.
- Mr Dove submitted that the shore conservation programme was just a glancing blow, to be distinguished from the more lethal impact of a local plan. Designation, he said, was of no consequence to the Finnish landowner, though, as I have pointed out, the Finnish landowners would not have found that a realistic approach to its impact. Expropriation would be the subject, submitted Mr Dove, of a further hearing and full compensation. The shore conservation programme was an innocuous exercise, he submitted, to be contrasted with the Local Plan, where he said the McAlpines' case for development had been rejected and no planning permission could realistically be expected.
- Mr George submitted that Uuhiniemi was just a Commission decision and out of line with other European Court of Human Rights jurisprudence. He suggested that the first ratio of Oerlemans had been misunderstood in the Uuhiniemi case because the latter had ignored the dispute in Oerlemans over the lawfulness of the designation order, which he said was a parallel to a dispute over the lawfulness of the adoption of a local plan.
- I disagree; in Oerlemans there are not two ratios, but two features which operate in combination. The ratio of Oerlemans involves the combination of the dispute over the lawfulness of the designation order and the direct effect which the designation order had in imposing actual restrictions on property rights. Together they determined civil rights. The parallel to be drawn is not with the challenge to the lawfulness of the local plan's adoption, but with say an arguably unlawful Article 4 GPDO direction.
- Mr Elvin next relied on Turner v UK (1997) 23 EHRR CD 180. The applicant was a gypsy whose application for planning permission to use land for stationing a caravan was refused by the local planning authority and whose appeal was dismissed by the Secretary of State. The Commission assumed that those proceedings and the subsequent High Court challenge determined civil rights and obligations. The case is of interest only because, whilst the applicant complained successfully and in other contexts that an Avon Valley local plan policy from the New Forest District Council was a blanket and discriminatory policy, it was not suggested by the Commission that the applicant's civil rights had been determined by its adoption. This was so even though it recognised that a likely explanation for the large number of refusals of applications by gypsies for planning permission for stationing caravans, was that they were made in areas where development was restricted by local plan policy. This case is of but the most modest assistance therefore.
- Mr Elvin then turned to a sequence of Austrian planning cases: their usefulness is limited by obvious differences between Austrian domestic planning legislation and the United Kingdom legislation. Mr Dove characterised the effect of the decisions at issue there as being those of blows felt by an unconscious combatant.
- In Enzi v Austria App No 29269/95, 8th February 2000, the applicant, who was the owner of various plots of land which were on the whole designated as agricultural land in the area zoning plan, applied to the municipality for a partition of the land in such a way that the plots could be used later for building. This application was refused by the municipality on the basis that the requested partition was contrary to the area zoning plan. The applicant appealed to an appeal board, which rejected the appeal on the basis that it was contrary to the area planning zone in force. The European Court concluded that, notwithstanding what the applicant said subsequently, the real purpose of the land partition applications was to make the land less suitable for its current agricultural use and therefore more suitable for building use as part of a strategy to bring about a change in the zoning plan. The court concluded:
"Thus, the Court cannot but conclude that in reality the dispute concerned the designation of the parcels in the area zoning plan and the objectives mentioned in the Vorarlberg Planning Act.
The Court notes that the Austrian Government, in their observations, referred to Application No 26794/95 (Schertler v Austria, Dec 4.9.1996), and finds that the facts and legal issues involved in that case and the present application are essentially the same. In its decision [on that case], the European Commission of Human Rights found that there was no genuine and serious dispute over a right of the applicant, as he had no right to have his land partitioned contrary to the existing area zoning plan nor did he have a right to have the area zoning plan amended to change the designation of his land. The Court sees no reason to reach a different conclusion in the present case. Since the relevant provisions did not grant a right to build on agricultural land or to have the agricultural designation of that land changed in the zoning plan, the Court cannot find the land partition proceedings at issue involved a determination of the applicant's civil rights within the meaning of Article 6(1) of the Convention."
- The key point is that civil rights were not engaged, because although the legislation was described as not affording the right to have a partition permitted or amendment made to the area zoning plan, in essence the grant of an application for partition and amendment was precluded in the circumstances as a matter of law by the Austrian statute. There was therefore no right to be determined. The case was not about whether area zoning plans determine civil rights; and the scope for them to do so is obviously controlled by the terms of the relevant Planning Act.
- I do not consider that this case advances matters on the effect of the local plan, where the right to make applications for planning permission is unaffected, and pursuant to which no application for planning permission is required where hitherto it had been unnecessary. Enzi is equivalent to a United Kingdom applicant complaining that, outside the statutory procedure which can be initiated by a local planning authority for reviewing its plan, the authority had simply refused to amend the plan, an act which the local authority has no statutory power to do. Nor does Enzi suggest that the power in section 39 of the Town and Country Planning Act 1990, pursuant to which a local authority has power at any time to prepare proposals for the alteration or replacement of its local plan, is one a refusal to exercise which determines or engages any civil right.
- Ludescher v Austria Application No 23098/96, 16th January 2001, illustrates the same point. It is an admissibility case. Despite the language used by the court to the effect that there was no determination of civil rights because the relevant Austrian statutory provisions "did not grant a right to build in a free zone", it is clear that that is because such a building permit was precluded by law. It cannot be seen as dealing with the equivalent to the discretionary grant of planning permission, in respect of which there is also no right: there is no law precluding planning permission being granted for built development in either the Bovis or McAlpines case. Even less can it be seen as dealing with the equivalent of a local plan designation. All it does is show that where domestic law makes no provision for the making of an application for a discretionary planning permission or where it precludes its grant as a matter of law, either generally or in particular factual circumstances, refusals of requests for permission do not determine any domestic civil rights. Article 6 does not create a right to apply for permission. It does not deal with the substance or content of domestic civil rights. There is no right to a planning permission in UK law; but what the Austrian cases deal with are situations where the absence of right to a building permit results from a prohibition on its grant or the absence of a statutory procedure for its grant.
- In my judgment the true nature of these Austrian cases is made clear in Maser v Austria App No 26508/95, a Commission decision of 26th February 1996, as to admissibility. An application for a building permit on agricultural land could only be permitted in law if the area zoning plan were first amended. The applicant appears to have shown to the Austrian courts that there was no reason from a merits point of view, described in the case as a "scientific point of view", why the amendments should not have been granted. He asserted a violation of his Article 6 rights. But the report of the Austrian legislation states:
"... the Constitutional Court refused to deal with the applicant's complaint. It found that in view of its constant case-law according to which there was no subjective right of the owner of land to have the use of his land marked in the Area Zoning Plan amended upon his request, the complaint had no prospect of success.
... the legislator was free whether or not to amend an Area Zoning Plan even if all legal requirements for a specific designation of a parcel of land were met. Moreover, it observed that the mere wish of the owner of land to have the designation of his land in the Area Zoning Plan amended was not even a sufficient reason under regional planning laws to justify the amendment of an Area Zoning Plan."
- That provides the context for the Commission's short reasons:
"The Commission recalls that it has previously held that a decision rejecting a request for amendment of an existing building plan does not involve a determination of civil rights. (See No. 11844/45, Dec. 29.2.88, DR 55, p. 205; No. 20326/92, Dec. 2.9.94, unpublished. The Commission has also held that a dispute about an owner's use of land for purposes other than those listed in the relevant rules does not determine the owner's civil rights, but concerns the application of public law regulations to the permitted use of land (see No. 10471/83, Dec. 9.12.85, DR 45, p. 113).
From the above case-law it follows that civil rights within the meaning of Article 6 (Art 6) of the Convention were involved where the applicants had had, or could arguably be said to have had, rights recognised under domestic law which were revoked or denied by the decisions of the administrative authorities (see No. 20326/92, Dec. 2.9.94, unpublished). In the present case, however, the applicant had no right to build on his property as, according to the Area Zoning Plan which had been issued in 1976, this land was designated as agricultural land. The refusal of the Austrian authorities to amend the Area Zoning Plan as requested by the applicant did not change this situation. The Commission further notes that according to the decisions of the Constitutional Court and the Administrative Court in the applicant's case the regional planning laws did not recognise a right for the individual to have an Area Zoning Plan amended."
- I have set out these cases at some length because of the reliance which the Secretary of State placed upon them. Mr Elvin submits that they show that the area zoning plan was not treated as determining civil rights, even though that plan is more direct and influential than the local plan in United Kingdom law. The former permits developments; the latter has only the effect that, because of section 54A, decisions must accord with it unless other material considerations apply.
- Mr George and Mr Dove submit that these cases do no more than show that the refusal of a building permit where it could not be granted because of the area zoning plan, or a refusal of an amendment to the area zoning plan where it could not be granted as a matter of law, did not determine civil rights. These were, therefore, final or inconsequential effects of earlier unchallenged decisions. None of those cases concerned the effect itself of the decision adopting an area zoning plan.
- I do not derive assistance from these cases. They do not deal with whether decisions on area zoning plans determine civil rights. The highest it can be put by the Secretary of State is that these cases do not suggest that the decision on an area zoning plan would determine civil rights, even though such a point could have been made, and even less, therefore, would the local plan determine civil rights. All those Austrian cases determine is that no civil right is engaged where a building permit cannot be granted in law because it would be contrary to the area zoning plan, or where the area zoning plan cannot be amended even though a sound case for doing so exists on its merits, because no legal power exists to make the amendment on the application of a disgruntled landowner. I reject Mr George's distinction that in the Austrian cases the court was concerned with somebody who was seeking unsuccessfully to improve his position, whereas in Mr George's case Bovis was facing a worsening of its position as a result of the designation of its land as part of the NFHA. I regard that as a false distinction for the purposes of the determination of civil property rights.
- In my judgment there is no clear authority dealing with the position equivalent to that of a local plan, which does not itself represent a final or conclusive determination of civil property rights but which is intended to have and often does have a very significant effect on that final determination, and can indeed have an immediate impact on values through the blighting effect of proposals and designations or through the immediate loss of or reduction in the hope of development value accruing in the future, or can have an immediate beneficial effect. It is necessary to be careful about applying decisions reached in the context of one domestic legal planning structure in the context of another domestic legal planning system.
- I consider, however, that civil rights are affected, but not directly determined, through the local plan process in general and accordingly that Article 6 does not apply for the following reasons.
- First, decisions within local plans generally and certainly the decisions here, do not directly affect ownership rights. The decisions themselves do not empower acquisition in the way in which a CPO would. Nor do they preclude the creation of interests. They do not create rights over the land e.g. by way of creating rights of public access to private land, such as might arise from a "right to roam". They do not prevent any current use being continued or subject the right to use or develop land to a new requirement for planning permission. They do not amount to a Direction under Article 4, General Permitted Development Order 1995, restrictive of rights to develop without planning permission, thus introducing a new layer of authorisation before development can take place. I accept that that might be the consequence of designation as a national park, and such a designation would be strongly influenced by a local plan; but that is not the same thing as a decisive determination directly affecting civil rights.
- Second, the civil right of property, includes the right to use, enjoy and develop property, even though much development is not a matter of right but requires the discretionary grant of a planning permission, which itself is a policy-based decision. The policies, proposals and designations in a local plan affect those civil rights sometimes more directly than others, precisely because they affect the prospects of development and current values, whether through the adverse effect of proposals or designations, or the loss of, or failure to obtain better prospects of development.
- However, decisions on local plans which guide and influence perhaps decisively decisions on planning permission are not directly decisive of and so do not directly affect the rights to use land. The right to apply for planning permission and to have it considered on its individual merits including the policy weighting still remains, however unlikely the prospects of success. An allocation or designation does not amount to a grant or refusal of planning permission, although the designation of the New Forest Heritage Area, more so than a non-allocation for development, is intended to have a severe, long term and adverse effect on development prospects.
- It is important to concentrate on substance rather than on form. However, there is a real difference between this and a compulsory purchase order, which is regarded in Alconbury and in Boden v Sweden (1987) 10 EHRR 367 as subject to Article 6, because whilst the CPO does not itself lead to the transfer of property or preclude the dealing in property, it creates a public law right to an authority to acquire land by invoking the procedure for a transfer, as well as in substance blighting ownership rights. In effect it directly affected the right of property because it represented the point after which one could not dispute the acquisition by vesting declaration or notice to treat (assuming compliance with narrower statutory public law requirements for that nonetheless judicially reviewable decision). It is the substantive decision leading to a formal process which would not involve a review of the merits or lawfulness of the CPO itself. I do not consider, however, that that can be extended further to apply to the less direct effects constituted by the weighting of policy components within decision-making scales.
- Although the local plans' prior weighting of the scales upon which the actual grant or refusal of planning permission will turn, can be said to have a real and significant effect on the right to develop land in contrast with a remote effect, that is still not the degree of impact which Article 6, in the European Court of Human Rights jurisprudence, requires in order for the civil right to be determined. Even though it is important to focus on the substantive effect of the decision rather than simply upon its form, the determination to which Article 6 applies must be directly decisive of the substantive dispute.
- I do not consider that there can be two decisive stages, with the planning permission as one decisive stage following upon an earlier decisive stage in a local plan. That which Mr Dove described as the "initial important step" of the local plan cannot, in my judgment, be decisive within the European jurisprudence. There is no doubt that the planning permission was the decisive step, as envisaged by the Alconbury decision. I only add that it is possible to envisage circumstances where not even the planning permission would be decisive, as where the siting of a building is left as a reserved matter on an outline permission and yet it is the precise siting of the building which determines or directly affects civil rights.
- The claimants' arguments that the significant effect which a local plan designation or decision may have, are the direct effects of which the House of Lords spoke in Alconbury or to which the European Court of Human Rights refers by the use of the phrase "directly affects", is mistaken for two reasons.
- Reliance has been placed by the claimants first on the language of "decisions that have the effect of determining or directly affecting civil rights", and on the last phrase in particular. But this language is used in relation to cases where the administrative decision in question is not itself a decision as to the existence or nature and scope of the civil right. However such decisions engage civil rights and thus bring in Article 6(1) where they directly affect the existence or nature and scope of such rights. It is in the nature of such administrative decisions that they do not themselves determine civil rights; but the decision "directly affects" them. It is the less immediately decisive role inherent in administrative decisions which is caught by the language "directly affects". This I consider to be clear from the decision in Ringeisen v Austrian (No 1) (1971) 1 EHRR 455. The public law decision to withhold approval to a transfer of agricultural land was decisive of civil property rights because it was decisive of the enforceability of a contract for the transfer of land which had been entered into. This was the decision which "directly affected" those rights, though obviously it did not directly determine who was the owner, which would have been a classic civil property right dispute. Lord Hoffmann in Alconbury at paragraph 80 refers to the importance of this case, as I see it, precisely in this context. Accordingly the phrase "directly affects" is one which contemplates a decisive stage, not a precursor, however important, which is not itself decisive. The language, in my judgment, of the European Court of Human Rights and of the House of Lords in Alconbury is all of one piece. It is in relation to administrative decisions which affect civil rights that the sort of language commonly found in ECHR cases is used. This is reflected in Benthem v Netherlands (1985) 5 EHRR 1 and Balmer-Schafroth v Switzerland (1997) 25 EHRR 598. The relevant part of this is cited by Lord Clyde in his discussion of matters in paragraph 149 upon which the claimants rely:
"As regards the question whether the dispute related to the above-mentioned right, the court considers that a tenuous connection or remote consequences do not suffice for article 6(1) in either of its official versions ('contestation sur'; 'determination of'): civil rights and obligations must be the object - or one of the objects - of the 'contestation' (dispute); the result of the proceedings must be directly decisive for such a right."
- It is to be noted that that is referred to by Lord Clyde in the context of decisions which have a direct effect in deciding rights or obligations.
- The jurisprudence of the European Court of Human Rights secondly contrasts tenuous connections or remote consequences with decisions which are directly decisive or which directly affect civil rights. I do not consider, though I was at one point attracted to the notion, that this delineation of effects is intended to leave some unapportioned middle ground of effects neither remote nor direct, as Mr Dove suggested, into which the impact of local plan proposals could fit. Directly and remote are contrasts where that which is not direct is remote. The clear emphasis in the European Court of Human Rights jurisprudence and in Alconbury is on "direct" or "close" effects, to use the language of Ortenberg v Austria (1994) 19 EHRR 524 at paragraph 28.
- The concept of a decision having a direct effect on a civil right is not intended to introduce into Article 6 the concept of any decision which significantly impinges on the prospects of a fruitful exercise of property rights, but reflects rather the fact that the decision in question is a public law decision. It is the decisive public law decision upon which the words "directly affect" focus. Anything short of that is too remote and tenuous.
- Thirdly, this analysis is supported by the historical analysis of Lord Hoffman in Alconbury which in paragraphs 78 to 80 indicates that Article 6, when applied beyond the purely private law disputes which might have been envisaged by the original framers of the Convention, to those public law disputes which affect private law rights, was intended to be applied on a narrow or direct basis rather than on a broader basis. On the narrower basis, it would cover breaches of planning control, decisions on authorisations, permits or planning permissions, CPOs or expropriation permits, restrictions on ownership or transfer, and directions restrictive of what could be done without planning permission. It would not apply to the broader policy-based decisions by democratically accountable local planning authorities as to the weight to be given to various factors in the form of a local plan, but which nonetheless leave discretionary or policy decisions as to whether planning permission should be granted still to be made. In popular language, the dice may have been loaded and their roll made more predictable to varying degrees, but the chance still remains for good fortune to smile on their thrower. More prosaically, a democratically accountable body is arriving at policy decisions on land use which will affect, but not determine, the outcome of applications for planning permissions which the landowner or others remain entitled to make and are not newly obliged to seek. I do consider that a line can rationally be drawn on such a basis without favouring the formal decision-making stage at the price of ignoring the substance of the basis for the decision.
- Fourthly, Unless a line is drawn in that way I can see no rational basis for drawing a line at adverse designations, as opposed to refusals to allocate land, whether previously allocated or designated or not.
- I do not consider that Bovis' human rights have been determined because a new and adverse designation has been imposed, whereas McAlpines have not been affected because the land has not been allocated as a reserve site or even as a housing site, nor were Bovis' human rights determined because the land had been considered for major growth in the different circumstances of the late 1980s and early 1990s. But to hold that a refusal to allocate land in a local plan was decisive of civil rights, in advance of the consideration of any application for planning permission, would be an extension of the concept of decisions "directly affecting" civil rights far beyond the ECtHR jurisprudence, the Alconbury case and their underlying rationale.
- Fifthly, I consider that such European Court of Human Rights jurisprudence as there is supports this analysis, not in the Austrian cases or in Jacobsson or Oerlemans because they do not deal with the sort of issue to which these instant cases give rise, but in Uuhiniemi. I appreciate that is a Commission decision, but it is nevertheless one in which the Commission necessarily regarded itself as applying well-established principles. That designation had no direct legal effect, but laid the ground for other decisions in the same way as the local plan does. But according to the Finnish applicants - and this was not rejected on the evidence by the court - this designation had an immediate impact on the value of the land and the amount realisable on a sale if purchasers could be found. It is the nearest equivalent to a local plan and has much in common with its critical features. The Commission held, pursuant to what it saw as its normal jurisprudence, that that designation did not determine civil rights. This confirms my view as to the direction of European Court of Human Rights jurisprudence and the distinction which I draw between direct and remote effects.
- I do not wish to hold however that local plan proposals or designations are never capable of directly affecting civil rights.
- The designation of land for a purpose leading to statutory or non-statutory blight might determine human rights. Such designation may bring in rights to have the property thus affected acquired by an acquiring authority or they may yield an enforceable legitimate expectation through policy guidance, that that would happen in the exercise of a discretionary power.
- The blight may prevent any effective exercise of the right to dispose of property, even for its current use. Its impact would be qualitatively of a degree beyond that of a designation, such as New Forest Heritage Area or Green Belt. With those latter designations, existing uses and the ability to transfer to another to carry on such uses are unaffected. A possible, but never certain, development expectation is removed.
- I do not consider that the reference in Carpets of Worth to Green Belt imposing a kind of planning blight or directly prejudicing a landowner is of assistance in this context. The comment in that case was not made in the context of whether civil rights were determined or directly affected. It was used in the context of the obligation to give reasons. 'Blight' was used in a very general sense of casting a pall over development prospects. There is a real difference between that and the impact on saleability to anyone, let alone at current value, which blight truly brings. Blight in its narrower sense is much more equivalent to an expropriation permit or a CPO than to a designation which makes planning permission for development very much less likely. A Green Belt designation is not equivalent to a local plan notation, for example, of property on a defined road alignment, with the implications for compulsory purchase which that entails.
- However if, as I consider to be the case, it is appropriate for there to be real reservations about whether so substantial and immediate an effect on peaceful enjoyment does not determine civil rights, I consider also that that is about as far as the local plan process is likely to go in being a determination of civil rights within Article 6. These two cases represent the normal spectrum of policies emanating from a local plan.
- I shall deal more briefly with the question of whether, on the assumption that the decisions in the local plan do determine civil rights, the procedures adopted, including statutory challenge, complied with Article 6, but I shall do so on the basis that New Forest District Council had not lost on the basis on which I concluded that it had lost.
- In my judgment the real issue here is whether the decision in Alconbury can be distinguished by reference to the particular procedures for local plans or the particular facts of this case. I do not consider that it can be, and I consider that the local plan process, with High Court challenge, was in each instance Article 6 compliant. I set out my reasons.
- First, it is clear that the House of Lords was focusing on decisions of the type raised before it but was not confining what it said to decisions on planning applications, Highways Act orders and schemes, associated CPOs, or Transport and Work Act orders. Its decision would be of wider application and certainly of wider application in the planning sphere. Lord Hoffmann at paragraph 66 says as much.
- Lord Prosser, delivering the opinion of the Inner House of the Court of Session in County Properties Ltd v Scottish Ministers 16th August, 2001 unreported said:
" Turning to the Alconbury appeals, it could be seen that the House of Lords had considered, as a matter of principle, whether the planning or other statutory procedures in question entailed an incompatibility with Article 6(1). Bryan had established, where there was a delegated decision by a Reporter, that there was no such inherent incompatibility. And the Alconbury appeals had established that the fact that the decision was being made by a Minister did not produce a different result. The decision flowed from the nature of the administrative process and not from any particular matter of detail. That being so, this case was not distinguishable. Counsel of course referred us to particular passages in the speeches of their Lordships in the Alconbury appeals, but we do not see it as necessary or inappropriate for us to analyse or reformulate or gloss what their Lordships said.
 We are satisfied that what was said in the Alconbury appeals did not relate merely to the specific facts and procedures which were under scrutiny in those cases. The crucial questions are issues of principle. We are satisfied that even upon the basis that there is contestation at the administrative stage, the nature of the administrative and ministerial responsibilities and functions lies at the heart of any assessment of what is required in terms of Article 6(1). The distinctions drawn between the present case and what was in issue in the Alconbury appeals do not, in our opinion, make this case distinguishable in principle. We are satisfied that, in accordance with the principles identified in those appeals, it cannot be said that there is any inevitable incompatibility with Article 6(1) in the Scottish Ministers' decision to determine the petitioner' application for listed building consent, or in the appointment of a Reporter. The powers of the court to deal with genuinely justiciable issues arising in the administrative procedures are sufficient to ensure compatibility."
- I respectfully agree.
- The House of Lords attached significance to the role of policies adopted by democratically accountable bodies in decision making on expediency or policy-based decisions as to e.g. whether planning permission should be granted. In my judgment that approach would apply with yet greater force to the very process of formulating policy itself; that necessarily involves policy or expediency decisions, whether on site specific or on general criteria-based policies. Such decisions are less directly determinative of civil rights than planning permissions, on the assumption which I make for these purposes, that a civil right is involved at all at that stage.
- Support for that view can also be seen in the decision in City of Edinburgh Council v Secretary of State for Scotland  1 WLR 1447.
- That approach also affects what powers it is necessary for a court to have in order to possess the full jurisdiction necessary to ensure that the process overall is Article 6 compliant. If, on a planning application dealt with via the inspectorate and the Secretary of State, the statutory powers of challenge akin to those available through the procedure of judicial review suffice, with the limited but still potent review of the approach of the local planning authority to the facts, even more so do they suffice in relation to local plan decision-making.
- Compliance with Article 6 does not require a precisely similar process for different circumstances. What is necessary depends upon the nature of the determination in question. The local plan process does not contain features which distinguish it favourably to the claimants in any relevant or significant manner from those processes considered in Alconbury. The differences reflect the fact that local plan processes are concerned with policy making and therefore have a wide public involvement.
- At the various stages there are requirements on the local authority to publish notices, to consult with statutory consultees, to undertake public consultation and to consider objections made in the course of the process. There is also an inquiry stage, which allows for the consideration of objections to the deposit draft plan by an impartial inspector, where objections have not been resolved through discussions with the local authority or withdrawn. The inspector can now also be asked to consider any pre-inquiry proposed changes. The inquiry process itself allows for evidence, cross-examination and oral and written representations. The inspector submits a report to the local planning authority, containing a series of recommendations as to what changes should be made in regard to the objections considered.
- I do not consider it necessary here to consider the fact that certain aspects, for example housing supply requirements are habitually considered in less formal round table discussions at which not every objector participates. This is simply the consequence of the policy-based nature of the plan, with issues common to many objectors which an inspector can conveniently handle in that way. The inspector is impartial in the normal or popular sense, albeit that he is paid for by the local planning authority. These procedures are not, in my judgment, different in essence from those considered in Alconbury.
- The report is then considered by the local planning authority, most often by a committee of members, with officers advising them, with parallels in the way in which civil servants can advise a Secretary of State after submission by the inspector of his report to the Secretary of State with his recommendations.
- I recognise that there is a distinction in the way in which separation exists in the Civil Service between those who promote a proposal and those who advise the Secretary of State on an inspector's report, whereas in relation to a local plan one can often find the person whose evidence has been rejected by the inspector advising the local authority that what he said was sound after all. That is a distinction, but one must bear in mind that the local authority is still subject to the statutory requirement to consider what has been said by the inspector and to give reasons for the rejection (if rejection follows) of the inspector's recommendations. This assists transparency of process.
- Just as the Secretary of State is not obliged to accept the recommendations of an inspector, so the local authority is not obliged to accept the recommendations of an inspector. This was not considered in Alconbury to be something which prevented the process being compliant with Article 6. The local planning authority has to consider the report and decide what action, if any, to take in the light of the inspector's recommendations and reasons for what it decides have to be given. In many ways this can be seen as a more extensive obligation than that which applies to the Secretary of State. The Secretary of State is not as such obliged to give reasons for rejecting an inspector's recommendation, though often he will do so. His obligation is only to reopen an inquiry in the event that he is minded to reject an inspector's recommendation because he has reached a different view on a matter of fact.
- The local planning authority has to consider the responses made to its decisions on the inspector's recommendations; and there is a further opportunity for those who are concerned about what has been done and about what may be new proposals, to put their representations forward. The exercise by the local authority of a discretionary power to hold a further inquiry is an important part of the process. It might be seen as an additional safeguard which, unlike that which applies when the Secretary of State considers whether there should be a fresh inquiry, is not confined to issues of fact upon which the local authority differs from the inspector.
- Finally, the whole process is subject to review by a court on statutory challenge on grounds equivalent to those available by way of judicial review. Those grounds include the need to have regard only to material considerations, bias, predetermination, the adequacy of reasons; those requirements are applied to decisions on proposed modifications, to decisions which reject an inspector's recommendation, and also to the need for a fresh inquiry. There is a limited but nonetheless real scope for a review of factual conclusions or conclusions on the evaluation of fact or of the application of policy which sufficed in Alconbury, and, in my judgment, suffice here.
- I do not consider that the basis upon which the claimants sought to distinguish the local plan process from those considered in Alconbury are sound. The local planning authorities are no more a judge in their own cause than is the Secretary of State when dealing with his own policy, or with proposals promoted by his own government departments, or on land owned by the Crown. The fact that the Ministry of Defence own land at Alconbury, or that the proposals for a CPO were promoted by the Highways Agency, did not prevent compliance with Article 6 through the full jurisdiction represented by judicial review. The procedures before the inspector at an inquiry into a planning application or into appeals against refusals of planning permission, or into objections to CPO are not significantly more adversarial than those at a local planning inquiry, with the exception of informal round table discussions on certain issues common to a number of objectors, usually of a technical nature, which an inspector judges can more effectively be considered that way, or of the possible role given to supporters of a local plan policy. Such informal procedures are much less common, though not unprecedented for controversial issues which arise in the course of other inquiries, and indeed it is now common for such an informality to attend the discussion over for the need for and drafting of planning conditions. The inspector at a local plan inquiry does not adjudicate between competing cases any more or less than he does on other appeals where a recommendation is made to the Secretary of State. A recommendation can be overridden provided that legally adequate reasons are given in either instance.
- I do not accept that the existence of disputes as to primary fact or evaluation of fact, such as may arise in the course of a larger decision as to whether a site should be allocated or designated in the Local Plan, has any general bearing on these issues. It was suggested by the claimants that such issues entailed a greater deal of safeguard than judicial review could provide, in the absence of decision by an independent inspector.
- Mr Dove suggested that a distinction should be drawn between issues of fact or evidence, and issues of discretion involved in political or expediency decisions. So far as the former was concerned, he instanced the way in which a shortfall in housing provision is dealt with, and so far as the latter, he said that the postponement of the alignment of the NDR to the local plan review was a political or expediency decision. I do not consider that that is a sensible analysis or distinction to draw. Rather it illustrates the artificiality of distinctions between fact, evaluation of fact and planning judgment within the one "policy decision".
- That suggestion does not provide a means of distinguishing Alconbury. These instant cases were ones in which the issues placed before the inspector included all factual issues, issues as to the evaluation of fact, planning judgment and discretion, and included such components of the decision-making process as might be regarded as purely policy or expediency. The inspector made recommendations taking all those matters into account without dividing them up into different categories of decision.
- In Alconbury, the inspectors likewise would reach conclusions and make recommendations involving a complete range of such issues.
- There is a difference in relation to the obligation to reopen an inquiry, which upon a planning appeal would arise where the Secretary of State was minded to disagree with his inspector on a finding of fact and to reach a different decision for that reason. For the local plan inquiry a wider power exists to hold a further inquiry, albeit that it is not a matter of obligation. I do not, however, see that further limited basis for an inquiry as an essential part of the reason why the procedure considered in Alconbury complied with Article 6; nor do I see the differing power to hold a further inquiry in the local plan process as providing a reason why the local plan procedure would not comply. I do not see the difference in the power to hold an inquiry as a basis for requiring additional safeguards for particular sorts of issue arising in the course of a decision-making process, the upshot of which to one single decision.
- The distinction between the two forms of inquiry provision reflects the different nature of the decision with which each inquiry is dealing and the different nature of the recommendations which may flow from it: policy-making with a high degree of public consultation and decisions on specific applications.
- I also add that reliance was placed by the claimants on the obiter comments of Richards J in R (on the application of Kathro) v Rhondda Cynon Taff Borough Council EWHC Admin 527 (unreported 6th July 2001). Kathro concerned an Article 6 challenge to a proposed decision by a local planning authority on whether or not to grant planning permission for a project on its own land. It was not clear what factual issues, if any, would be involved. Richards J said in paragraphs 28 and 29:
"28. Looking at the overall tenor of the speeches in Alconbury and the underlying decisions of the Strasbourg court, however, I accept that the finding that the Secretary of State's decision-making process was compatible in principle with article 6 was based to a significant extent on the fact-finding role of the inspector and its attendant procedural safeguards. By contrast, there is no equivalent in the decision-making process of a local planning authority. That process includes a right to make representations and to submit evidence, and persons may be heard orally at a meeting of the relevant committee. But there is nothing like a public inquiry, no opportunities for cross-examination and no formal procedure for evaluating the evidence and making findings of fact. The report of the planning officer to the committee generally contains an exposition of relevant facts, including any areas of factual dispute, but does not serve the same function as an inspector's report. In general there will be no express findings of fact by the committee itself. All of this considerably reduces the scope for effective scrutiny of the planning decision on an application for judicial review. It makes it more difficult, if not impossible, to determine whether the decision has been based on a misunderstanding or ignorance of an established and relevant fact, or has been based on a view of the facts that was not reasonably open on the evidence.
29. For those reasons there is in my view a real possibility that, in concern circumstances involving disputed issues of fact, a decision of a local planning authority which is not itself an independent and impartial tribunal might not be subject to sufficient control by the court to ensure compliance with article 6 overall."
- For my part, I consider that the distinction between, on the one hand, issues of fact and evaluation of fact and, on the other hand, policy issues is not the crucial distinction which Lord Hoffmann was drawing in Alconbury for these purposes. He said:
"117 If, therefore, the question is one of policy or expediency, the 'safeguards' are irrelevant. No one expects the inspector to be independent or impartial in applying the Secretary of State's policy and this was the reason why the court said that he was not for all purposes an independent or impartial tribunal. In this respect his position is no different from that of the Secretary of State himself. The reason why judicial review is sufficient in both cases to satisfy article 6 has nothing to do with the 'safeguards' but depends on the Zumtobel principle of respect for the decision of an administrative authority on questions of expediency. It is only when one comes to findings of fact, or the evaluation of facts, such as arise on the question of whether there has been a breach of planning control, that the safeguards are essential for the acceptance of a limited review of fact by the appellate tribunal.
128 The second strand concerns the facts. These are found by the inspector and must be accepted by the Secretary of State unless he has first notified the parties and given them an opportunity to make representations in accordance with the rule 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000. This is the point upon which, in my opinion, the Bryan case 21 EHRR 342 is authority for saying that the independent position of the inspector, together with the control of the fairness of the fact-finding procedure by the court in judicial review, is sufficient to satisfy the requirements of article 6.
129 Finally, the third strand is that of planning judgment. In this area the principle of the Zumtobel case 17 EHRR 116, as applied in ISKCON and Bryan cases to questions of policy, does not require that the court should be able to substitute its decision for that of the administrative authority. Such a requirement would in my opinion not only be contrary to the jurisprudence of the European court but would also be profoundly undemocratic. The Human Rights Act 1998 was no doubt intended to strengthen rule of law but not to inaugurate the rule of lawyers."
- The crucial distinction which Lord Hoffmann drew was between policy decisions and decisions about breaches of rules, the former not entailing "safeguards" in the form of the interposition of an inspector. This distinction was not expressly drawn or denied by Lord Slynn.
- Lord Clyde noted the fact that in the Alconbury cases there would be an appropriate inquiry before an inspector, but did not suggest that it was a necessary feature of compliance, nor did he draw or deny Lord Hoffmann's distinction, whilst emphasising the point that planning matters were essentially matters of policy and expediency, not of law. He did not deal with the position of local authorities.
- Lord Hutton's speech was in the same vein as Lord Clyde's:
"189 Whilst there is some weight in these submissions I do not think that they are of sufficient force to distinguish Bryan from the instant case. It is clear from para 47 of the judgment that it was in relation to fact finding that the European court referred to the safeguards attaching to the procedure before the inspector, and I consider that the second strand of the court's reasoning was the more important one. Moreover, the judgment cannot be viewed in isolation but must be considered in the light of other opinions of the Commission and judgments of the European court. I consider that the Strasbourg jurisprudence recognises that, where an administrative decision to be taken in the public interest constitutes a determination of a civil right within the meaning of article 6(1), a review of the decision by a court is sufficient to comply with article 6(1) notwithstanding that the review does not extend to the merits of the decision. Because it is a common feature of the judicial systems of a democratic member states of the Council of Europe that a court does not decide whether an administrative decision was well founded in substance, the Commission and the European court have held that article 6(1) does not guarantee a right to a full review by a court on the merits of every administrative decision affecting private rights, but that there is compliance with the article where there is a right to judicial review of such a decision of the nature exercised by the High Court in England."
- The role of independent fact finding and evaluation of fact in enforcement cases was an important aspect of compliance with Article 6 in those cases, but I do not see the remarks of the House of Lords, and in particular of Lord Hoffmann, as suggesting that the role of the inspector in finding facts or evaluating facts was a necessary safeguard for Article 6 compliance in what Lord Hoffmann described as "policy decisions". Of course it is understandable that the role of the inspector should have been prayed in aid by the Secretary of State in Alconbury and that the role of the inspectorate should be referred to in the speeches, but I do not discern any principle that in policy or expediency decisions, such as those involved in Alconbury and here, there is a need for independent fact finding and evaluation.
- To the extent that Lord Hoffmann is relied on by the claimants, he makes it clear that what he said is in the context of a firm distinction between policy or expediency decisions, as here, in which no such safeguards are necessary and decisions on whether rules have been breached.
- It is a misunderstanding of the significance of Lord Hoffmann's reference to findings of facts or the evaluation of facts which underlies the false distinction which Mr Dove seeks to draw.
- Lord Hoffman was not saying that a factual issue or an issue as to the evaluation of fact of itself required more extensive safeguards. He was not suggesting that any dispute of fact or of its evaluation entailed less limited safeguards than judicial review provided. It is not the nature of the dispute, factual or evaluative or planning judgment which requires the safeguards; it is the nature of the decision in which those issues arise.
- Whether planning permission should be granted is a policy issue, even though en route to its resolution a range of types of issues may arise. Lord Hoffmann's distinction was between policy and expediency decisions and decisions as to whether there was a breach of a rule. It is the latter which he regarded, in his language, as determinative of right, although clearly all of both types of decision engaged Article 6 and civil rights.
- I do not consider that the House of Lords contemplated for a local authority making decisions on planning applications or on a local plan, that there should be a different process for different types of issue arising within the single decision e.g. as to allocation or not which has to be made. Factual issues can, of course, arise in the course of a local plan inquiry, as they can in the course of a planning appeal or application, though the distinction which Lord Hoffmann drew included fact and evaluation of fact in the same category. He did not treat issues of primary fact as issues to be distinguished from evaluation of fact.
- Moreover, it is very difficult to draw a sensible distinction between issues of fact, issues of the evaluation of fact and policy issues, and the overall weighing of all of those issues for the purposes of reaching a decision on a planning application or on a local plan policy, proposal or designation, so as to compartmentalise and then parcel out the decision-making process, so that some components can receive the attention of an inspector and some not, and some of which will preclude the rejection of the recommendations of an inspector and others which would not or so that some could attract a more intensive level of judicial review.
- Take the impact of the A326: the question of what can be seen of it and from where may be a question of fact, although almost certainly it will include questions of judgment. The question of whether what was seen from where mattered or had a significant impact, whether in winter or in summer, is altogether another issue and how that then all weighs against ecological links is yet a third.
- Take the timing of the construction of the NDR: the question of when it was likely to be built could be seen as a question of fact or evaluation of fact, but in substance it would be a composite of judgments over the prospects of development taking place on various sites along its route, the cost of work, the timing of the acquisition process and the significance of the road; this would then be related to the impact of additional traffic on the A2 itself, which is a mixed question of the existing levels of traffic, which involves the interpretation and weighing of a mixed set of data and a view then being taken as to the amount of traffic that would be likely to route along the A2 westbound and the impact of such traffic as it did so.
- It was suggested that the postponement of the fixing of the alignment of the NDR to a review was a policy issue, but that the issue of a shortfall in housing and how it should be dealt with was an issue of fact and evaluation of fact. But the question of whether a shortfall would exist is a question of fact, but one which depends upon a certain amount of expert interpretation of data streams as to how many houses had been built; an assessment of the constraints that exist on sites that have been permitted or are allocated in the local plan, may also be a question of fact but it is one which depends upon expertise in evaluating the significance of constraints, an appraisal of the market which would bring them forward and the timescale over which that would happen. This all then leads to a policy issue or planning judgment issue as to the degree of risk as to what degree of shortfall might arise, leading to a further issue as to what is the best way to cope with the range of possible risks and the range of possible shortfalls.
- Compliance with Article 6 does not, in my judgment, require chaotic decision making. There was a time when inspectors used to divide their reports into findings of fact and other matters. That practice has been abandoned because issues simply could not be divided up that way without a wholly fruitless debate as to what constituted a fact and its finding. This would be aggravated by the problems of then trying to consider what constituted an evaluation of the fact, but nonetheless did not constitute a planning or policy judgment, if some such artificial framework were to be inflicted upon the decision-making process as a result of the claimants' submissions.
- All of these components to the decision-making process lead to a single determination as to whether land should be designated as falling within a particular area or whether land should or should not be allocated for a particular use. It is the making of that single decision which must be Article 6 compliant. These are policy decisions. I do not consider that Alconbury, and Lord Hoffmann in particular, can be taken to suggest that the findings of fact and their evaluation involved in the decision whether or not to allocate land for a particular purpose or to designate it within a local plan requires the interposition of an inspector who makes decisions or a separate standard of review in relation to fact or its evaluation in order for Article 6 to be complied with.
- Lord Hoffman draws the distinction he does because he is considering a determination of right compared to policy decisions in circumstances in which both types of decisions required compliance with Article 6. He was considering what form of procedure was required for compliance with Article 6, recognising that the nature of the decisions could lead to different forms of judicial intervention being required for the court to have the relevant full jurisdiction. The reference to fact and evaluation of fact reflect the two issues in planning enforcement or determination of right: what was done, which is the issue of fact; does that constitute a material change of use or operational development which needs planning permission, which is the evaluation of fact. Different safeguards, according to the type of decision, can be provided. The so-called safeguards were ones which he did not consider necessary in policy or expediency decisions. The decisions here fall clearly on the policy side of the line.
- Lord Slynn at paragraph 48 said:
"The adoption of planning policy and its application to particular facts is quite different from the judicial function. It is for elected Members of Parliament and ministers to decide what are the objectives of planning policy, objectives which may be of national, environmental, social or political significance and for these objectives to be set out in legislation, primary and secondary, in ministerial directions and in planning policy guidelines. Local authorities, inspectors and the Secretary of State are all required to have regard to policy in taking particular planning decisions and it is easy to overstate the difference between the application of a policy in decisions taken by the Secretary of State and his inspector. As to the making of policy, Wade & Forsyth, Administrative Law, 8th ed (2000), p 464 says:
'It is self-evident that ministerial or departmental policy cannot be regarded as disqualifying bias. One of the commonest administrative mechanisms is to give a minister power to make or confirm an order after hearing objections to it. The procedure for the hearing of objections is subject to the rules of natural justice in so far as they require a fair hearing and fair procedure generally. But the minister's decision cannot be impugned on the ground that he had advocated the scheme or that he is known to support it as a matter of policy. The whole object of putting the power into his hands is that he may exercise it according to government policy.'
As Mr Gregory Jones put it pithily in argument it is not right to say that a policy maker cannot be a decision maker or that the final decision maker cannot be a democratically elected person or body."
- What he said there is true for a local planning authority in the plan-making process.
- This analysis is supported by Zumtobel v Austria (1993) 17 EHRR 116, in which a part of Zumtobel's land was expropriated for the construction of a highway. There, before the expropriation order was made, Zumtobel was granted a private hearing before the office of the provisional government, the highway authority of which was seeking to expropriate the land. There was no disclosure of the many experts' reports upon which the government was relying; there was no cross-examination of the experts or officers; Zumtobel simply submitted its experts' reports and made observations. An appeal to the Administrative Court complaining of breaches of procedural and substantive law was dismissed by way of a written procedure. The European Court of Human Rights held, in paragraphs 21 to 32, that there was no breach of Article 6 in relation to these matters. That was a policy decision in which civil rights were engaged. There were many issues which could have been described as factual or ones of evaluation of fact. But there is no suggestion that some kind of independent finding or evaluation of fact is necessary. The powers of review which the domestic courts had was a sufficiently full jurisdiction in relation to those matters.
- This jurisprudence is supported by other decisions of the European Court, in particular in relation to Stefan v UK (1997) 25 EHRR CD 130, and Kingsley v UK (2001) 33 EHRR 13, page 288.
- I should add that I was subsequently referred to two decisions: first, to the decision of Forbes J in R (Friends Provident Life and Pension Ltd) v Secretary of State for Local Government and the Regions  EWHC Admin 820, 19th October 2001. I do not consider it necessary to set out any extracts from that. I simply record that I regard what is said in paragraphs 93 and 94 as helpful and illuminating in relation to this issue. It illustrates the problem in practice of factual issues arising in policy decisions. A policy decision cannot be regarded as a decision based on primary factual issues.
- I was also referred to the decision of Moses J in R (Bewry) v Norfolk County Council, 31st July 2001, unreported, a decision in relation to a housing benefit review board. I do not wish to take issue with the conclusions reached on the facts of that case, but I am not satisfied that it directly assists in considering the planning process or the distinction which Lord Hoffmann drew in the planning context.
- I do not therefore consider that judicial review by way of the statutory challenge is inadequate to provide the jurisdiction by an independent tribunal necessary to render the local plan process, including statutory challenge, compliant with Article 6.
Interpretation and compatibility
- Finally, Mr George for Bovis submitted that it was necessary for compliance with Article 6, that Regulation 16 of the 1991 Regulations should be read so that local planning authorities could only depart from an inspector's recommendation in certain special circumstances. These circumstances included a subsequent material change in circumstances or a clear misunderstanding by the inspector of a fact or its appraisal in a way which might also necessitate a fresh inquiry. Unless such a restriction were read into the regulations, the Regulations would be incompatible with Article 6. But they could be made compatible by interpreting the provisions of the Regulations in the way Mr George suggested. The discretion which the local planning authority had should be circumscribed, so that it was only available in those limited circumstances.
- Section 3 applied - and I have accepted this submission - to these court proceedings even though the local plan was adopted before 2nd October 2000.
- This statutory provision was a strong adjuration in relation to interpretation, as held in R v A No 2  2 WLR 15,  UKHL 25.
- Mr George submitted that the local planning authority was not entitled to reject an inspector's recommendations because that entitlement only derived from secondary legislation, ie the Regulations; they could be interpreted as he suggested to make them compatible with Article 6, because the primary legislation did not bar that interpretation. In any event it was not necessary to rely on section 3 of the Human Rights Act, submitted Mr George, because his was a necessary interpretation of ambiguous Regulations to ensure compliance with the ECHR.
- Mr George's argument is, in my judgment, with respect, misconceived. The structure of the legislation is clear and the matter against which Mr George complains, namely the power of the local authority to reject an inspector's recommendation, derives from primary legislation in the Town and Country Planning Act 1990, rather than from secondary legislation in the Regulations. The relevant duties to prepare a local plan and to comply with the procedural requirements are placed on the local planning authority and not on inspectors. Sections 36(1) and (2), 6) and (8), sections 41 and 47, and section 43(1) are all in the same vein. The duty is on the local planning authority to consider the inspector's report and to adopt the plan, having complied with the statutory processes.
- The structure gives the power of decision making to the local planning authority and not to the inspector because of the role of the democratically accountable local authority in this process; the inspector provides independent scrutiny, advice and recommendations but not determination. The structure has the purpose of according primacy to the democratically accountable body rather than to an individual inspector. The role of the independence of the inspector and the need to give reasons for decisions on his recommendations act as a means of informing the local authority, enabling its earlier decisions to be scrutinised, and enable the independent scrutineer to recommend how they should change. This then draws from the authority a rational justification for any view it takes as to how to modify the plan or whether to reject those recommendations. But the process is one which, in the context of a very elaborate public consultation process leads ultimately to the local authority's decision. It is wrong to treat this as the simple result of secondary legislation.
- Mr George's argument is that the local authority can reject a recommendation only either when it would be unlawful in effect to accept it, in which case it is an unnecessary interpretation to protect human rights, or alternatively when there is a change of circumstances. This is an exercise in the destruction of the purposes of the provisions themselves and in the substitution in reality of a wholly different decision-making structure. This is not permissible if the ECHR is only relevant to assist in the resolution of ambiguities.
- I do not consider that section 3 of the Human Rights Act assists either. I do not consider it possible to interpret the Town and Country Planning Act and the Regulations in the way contended for by Mr George without giving them meanings wholly different in purpose and effect to that which Parliament intended. If such an interpretation is the only way of ensuring compliance with Article 6, I agree with Mr Dove that that argument is in effect one of incompatibility. I do not consider that the discretionary power given to local authorities to reject inspectors' recommendations, giving legally adequate reasons for doing so, can be turned into the limited one for which Mr George contends without going beyond that which is permissible as an interpretive exercise under section 3, even allowing for it to be a strong adjuration. The discretionary power cannot be so circumscribed by interpretation; Mr George's approach would eviscerate the power.
- It was argued before the Divisional Court in Alconbury  JPL 291 that the Secretary of State was under a duty not to recover jurisdiction and always to follow an inspector's recommendation. A new interpretation of sections 77 to 79 and Schedule 6 of the 1990 Act was said to be necessary for the compatibility of that legislation with the Human Rights Act, in order that the actions of the Secretary of State should be lawful. The Divisional Court rejected that argument and concluded that it was not possible to construe the legislation in that way. The argument that there was a need for independent inspectors' decisions to be followed, bears close parallels to Mr George's arguments here over the local planning authorities' rejection of inspectors' recommendations. Again the legislation there casts the duty of decision making on the Secretary of State.
- The Divisional Court said:
"103.... Mr Hockman QC for HB, submitted that... Section 77 could be read even to the extent that the SSETR could never call in.
104. We do not accept these submissions. ... We do not think it is legitimate to read down a legislative provision so as to extinguish it. ....
105. It is argued that the position is different for recovered appeals. ... These provisions can be given effect in a way which is compatible with Article 6 by not exercising the power to recover. The fact that this does away with the power to recover and converts the power to delegate into a duty to do so is irrelevant. A public authority does not fail to give effect to a statute if it invariably uses one of two powers conferred on it, if that is the only way of achieving compatibility with the Convention.
106. ... we think that section 6(2)(b) does apply for the same reasons that it applies to Section 77. In other words this provision cannot be given effect in a way which is compatible with Article 6. On balance we prefer the latter view. Looking at the matter more generally, Sections 78 and 79 case the primary duty of deciding appeals on the Secretary of State. We have held that he cannot do so in a way which is compatible with Article 6."
- Although the House of Lords rejected the Divisional Court's conclusions on incompatibility, it did not refer to or reject its conclusions as to this aspect of the interpretation of the legislation because it was unnecessary for it to do so. Nonetheless, I agree with the Divisional Court's approach.
- Mr George's argument is, in effect, an argument as to incompatibility along the lines put forward by Mr Dove. I do not consider that Swale Borough Council acted in a way other than that in which it was entitled and obliged to act on the views which it had formed. Had the New Forest District Council reached a conclusion lawful within the scope of the Planning Acts apart from the Human Rights Act, there was nothing in the Human Rights Act which rendered its conclusion unlawful. However, whilst I accept the submissions of Mr Elvin and Mr Dove that Mr George's argument is an argument as to incompatibility, for the reasons which I have given I do not consider that there is any incompatibility between the local plan process and Article 6, at least in the generality of the cases which are likely to arise.
- Accordingly, Bovis's application succeeds on domestic law's ground. McAlpines' fails on its domestic law grounds. I do not consider the decisions determine the human rights of either claimant, but if they did they did so pursuant to procedures which complied with Article 6 of the European Convention on Human Rights.
- Mr George?
MR GEORGE: My Lord, formally I therefore seek an order quashing that part of the New Forest District Local Plan which designates as part of the New Forest Heritage Area or shows as so designated land to the north of Totton and to the east of the A326.
MR JUSTICE OUSELEY: Yes, I noted in my judgment, I think I noted it from your skeleton, in fact it is only that part of the Proposals Map that matters. There is no policy that arises for consideration.
MR GEORGE: Therefore I do not think it appropriate to have a specific reference to D1, which was contained in my skeleton early on.
MR JUSTICE OUSELEY: No, it is not. That policy is unexceptional when applied to the relevant area.
MR GEORGE: That is right. And the wording again at page 27 of the bundle from the claim form is a bit imprecise, which is why I put it in the way I just put it.
MR JUSTICE OUSELEY: I think it is sufficient if I order the quashing of so much of the Proposals Map as designates as part of the New Forest Heritage Area, that land which lies between the A326 and the 3A6.
MR GEORGE: I am grateful. I do not believe that matter is going to be contentious.
MR JUSTICE OUSELEY: I so order.
MR HARWOOD: Yes, my Lord.
MR GEORGE: So far as costs, I would seek my costs against the first defendant, that is against the Council.
MR JUSTICE OUSELEY: I think we are going to have an argument about the way these costs should be distributed. Shall I make the position clear, at least as the starting point? You are entitled, subject to any remarkable eloquence from Mr Harwood, to your costs in relation to the domestic law challenge. So far as the human rights challenge are concerned, I think the Secretary of State may have something to say about what should happen to those costs, but I do not see the New Forest should have to pay them.
MR GEORGE: Should have to?
MR JUSTICE OUSELEY: I do not see that they should have to pay your costs in so far as they are attributable to the distinct human rights point.
MR GEORGE: My Lord, that I can understand.
MR JUSTICE OUSELEY: Mr Harwood, is there anything you wanted in relation to costs if I order it on that basis?
MR HARWOOD: I would not seek to dissuade your Lordship from that course.
MR JUSTICE OUSELEY: There will be an order for New Forest to pay the costs of Bovis, except for those which arise in relation to its human rights point.
MISS OLLEY: May it please your Lordship, I appear on behalf of the Secretary of State.
MR JUSTICE OUSELEY: Yes.
MISS OLLEY: My Lord, I was intending to refer to a judgment of yours in the case of Bloor Ltd. I passed a copy of that to my learned friend. I have not yet passed a copy to your Lordship. Would you like me to do so?
MR JUSTICE OUSELEY: Just remind me what I said in that case. I think I made an order for costs in favour of the Secretary of State in relation to the human rights issues.
MISS OLLEY: Indeed, you did.
MR JUSTICE OUSELEY: That was a case in which, as I recollect it, Mr Holgate really fled the field.
MISS OLLEY: I believe that was the way it was put.
MR JUSTICE OUSELEY: Mr George, is there anything you want to say in relation to the human rights, as I am minded to make an order in favour of the Secretary of State against both McAlpines and Bovis in relation to the human rights points?
MR GEORGE: Can I indicate that I do not formally agree that. In my submission the Secretary of State is perfectly entitled to intervene, but it was not necessary for him to do so. Members of the Planning Bar are perfectly capable now of arguing those matters, and if he does intervene then he should bear his own costs. So that would be my primary submission.
If you are against me on that, I would say he should not have his entire costs. A very considerable amount of time was spent by everyone on those Austrian cases, which was a whole series of them, which your Lordship, in the clearest possible of terms, said in your Lordship's judgment that you did not derive assistance from those cases. My Lord, if, therefore, the Treasury Solicitor is to recover his costs, it should be, may I suggest, say two-thirds of his costs because we spent so long pursuing certain cases which were not ultimately of any assistance.
MR JUSTICE OUSELEY: You are not suggesting, are you, that in this dog eat dog world that McAlpines should bear more of the costs because it was their application for a declaration of incompatibility that might be thought to have caused the Secretary of State to put his or her, as the case may be, head over the parapet?
MR GEORGE: My Lord, it seems to me, whatever is the order in favour of the Secretary of State or the Treasury Solicitor in this matter, it should be equal between ourselves and McAlpines. I do not seek to differentiate.
MR JUSTICE OUSELEY: Mr Willetts, is there anything you want to say in relation to this for McAlpine?
MR WILLETTS: As far as McAlpine is concerned, I agree entirely with what Mr George says in relation to the costs in so far as the Secretary of State is concerned.
MR JUSTICE OUSELEY: So far as the Secretary of State's costs are concerned, it seems to me that this was a case where the Secretary of State was not merely entitled but was really expected to appear. So far as I am aware, this was the first time at which the potential incompatibility of the local plan process with the Convention was being considered. It was a case in which, even on Mr George's arguments, whilst they were not formally arguments as to incompatibility, were ones which nonetheless would have entailed a major change in the way in which the process worked. Whilst, of course, Mr George is right to say that members of the Planning Bar are perfectly able to deal with human rights points and do not require any special expertise as instructed by the Treasury Solicitor and that there is no particular magic attached to those who appear on his behalf, nonetheless the Secretary of State does have a particular interest which might be thought could not adequately be represented by the interests of the local authorities. That has nothing to do with the advocates who appear for the local authorities, who are themselves able and experienced advocates. It is to do with the interests which they represent.
Accordingly, I am going to order that the Secretary of State's costs be paid as to 50% by McAlpines and 50% by Bovis. Whilst I appreciate that the Austrian cases were of no assistance, nonetheless I think it was necessary for them to be shown to me because this is the sort of jurisprudence which is available and my consideration would have been incomplete if I had not seen the way in which the court had approached those cases.
MR STOKER: I apply for my costs my Lord against McAlpines, both in respect of the domestic challenge and the human rights point in my submission.
MR JUSTICE OUSELEY: Mr Willetts?
MR WILLETTS: I do not think I can really object to that.
MR JUSTICE OUSELEY: I do not think you can. An order for costs on all grounds.
I have been provided with statements of costs, but not merely in view of the hour, but in view of the length of the hearing, are people asking me to make specific orders?
MR GEORGE: No, my Lord. I think they should be assessed in the normal way.
MR JUSTICE OUSELEY: It is really in the Swale and McAlpines case I have got --.
MR STOKER: I do not know if it is in dispute. I did mention it to my friend.
MR JUSTICE OUSELEY: If it is not in dispute then you will be able to agree it with without any intervention on my part. If it is in dispute I am not minded to hear it unless you were really pressing. The case has gone over the normal period for assessment. I would be inclined to let it go for detailed assessment.
MR WILLETTS: I did have the opportunity of discussion, but we would like it to go to detailed assessment.
MR JUSTICE OUSELEY: Right, subject to detailed assessment. You can always agree it if you wish.
Are there any other matters?
MR WILLETTS: Just one other matter. I am instructed on behalf of McAlpines to reserve their position to seek leave to appeal so far as at least the human rights point is concerned.
MR JUSTICE OUSELEY: Yes. I am not going to grant you permission in relation to the human rights point because it seems to me that the position in relation to the domestic law is quite clear. The incompatibility argument which you raised has failed at all levels, and in particular it has failed at the retrospectivity point, and in my judgment that is quite clear. In many ways what I have done is to deal with matters plainly in an obiter way, but I had heard full and very helpful argument from a variety of sides with a variety of interests, and it would have been discourteous at least not to have dealt with the matters. So I refuse leave.