Bersted Parish Council v Arun District Council

Bersted Parish Council applies under s.287 of the Town and Country Planning Act 1990 for an order quashing part of the Arun District Local Plan 2003 allocating land for housing development at North Bersted under policy SITE6. The local plan was adopted by Arun District Council on 17 April 2003.

The basis of the application is essentially that the District Council (1) failed to give lawful consideration to whether to hold an inquiry into objections to proposed modifications of draft policy SITE6 and (2) erred in law in adopting the relevant allocation without first reviewing the infrastructure implications of the additional housing provided for by the allocation.

The deposit draft of the Local Plan (Second Review) was issued by the District Council in November 1999. Policy SITE6 included two allocations of housing, one at North Bersted and the other at Felpham. Both were adjacent to the proposed route of a relief road running across the north of the town of Bognor Regis.

The allocation proposed in the deposit draft for North Bersted was 350 houses, on two areas of land in close proximity to each other. The Parish Council objected to the principle of allocation of any housing at all to the North Bersted site. The landowners put in a very different objection, arguing that the housing allocation could be increased above 350 through increased densities.

Prior to the public inquiry the District Council issued proposed changes to the deposit draft (PCs 34, 40 and 46) whereby the northernmost of the two areas of land at North Bersted would be deleted from the allocation and designated a "publicly accessible landscape area", which would be considered for future housing if monitoring indicated the need, whilst the density of housing on the remaining area would be increased so as to retain the overall provision of 350 houses. The increase in density was intended to ensure compliance with government policy as set out in the recently issued version of PPG3.

The Parish Council objected both to the higher density proposed and to the proposal to allocate the northern area as public open space which might later be released for housing development.

The landowners also objected to the proposed change, supporting the increase in density to comply with PPG3 but contending that it should apply across the whole of the area allocated in the deposit draft. On that basis they suggested an increase in the North Bersted allocation to 750 houses in order significantly to reduce a shortfall of 440 units in the local plan as a whole.

The public inquiry took place between November 2000 and August 2001, with the inspector sitting for 53 days. The inspector described the SITE6 allocation as "the most controversial proposal in the Plan". He concluded that the plan as a whole should provide for 8,600 homes between 1996 and 2011 and that there was a residual need for greenfield sites to be allocated for new housing. He said that the proposals contained in policy SITE6 were put forward with great reluctance by the District Council but that if it had not taken this responsible course he would have had little alternative than to recommend that it should do so in order to meet its regional housing responsibilities. The District Council had rightly taken the situation further by adopting an approach to sustainable development now embodied in PPG3. The search sequence advocated in government advice promoted urban extensions as a higher priority than new settlements. He was in no doubt that SITE6 was an urban extension within the context of PPG3. The principle of new greenfield allocations in Arun, promoted as urban extensions, was thus strategically justified. He continued:

“Nonetheless, I well understand the Council's reluctance to put forward such proposals, and indeed the existing residents' reluctance to accept them without sustained and heart-felt objection. I recognise that the Secretary of State rejected a proposed housing scheme at North Bersted some 11 years ago, against the recommendation of the Inspector. However, that refusal was based primarily upon two matters: the loss of high grade agricultural land and the lack of a direct relationship between the then bypass proposal and the proposed housing development. I discuss below the changed circumstances surrounding these two matters and the current emphasis on sustainability which did not feature in the 1991 decision. I consider that decision now carries little weight in the present policy climate” (inspector's report, para 6.8.4).

He then gave detailed reasons in support of those views as well as dealing with other issues. In relation to sustainability, he explained that one of the government's reasons for promoting urban extensions as the next step in the search sequence for new housing was the potential to make effective use of existing facilities and services, minimising the need to travel. The housing elements of SITE6 were within walking distance of existing facilities and within cycling distance of the town centre. The size of the scheme, its relationship with the existing urban area and the potential to gain vehicular access from the north greatly increased the opportunities for improved public transport, and facilities for walking and cycling. Thus he did not consider the objectors' criticisms of SITE6 on these aspects of sustainability to be well founded (para 6.8.5).

On the question of loss of the best and most versatile agricultural land, he concluded that agricultural land quality was not a determining issue here, given the need for some greenfield sites for new housing (para 6.8.10).

He examined the proposed scheme for a relief road at some length, expressing himself satisfied that, subject to further consideration of certain details, it represented in principle the best overall strategy for Greater Bognor Regis that had emerged so far. There was no doubt in his mind that an urban extension of the scale of SITE6 could not take place without the relief to the urban area and the direction of vehicular access that would be provided by the proposed relief road (para 6.8.33).

He then came to the size of the North Bersted allocation. He referred to the pre-inquiry changes (PCs 34 and 46) that reduced the size of the housing allocation and defined one area of the land so released, south of Babsham Farm, as publicly accessible landscaped area which (by PC 40) would be one of two to be considered for further housing should monitoring indicate the need. He went on:

“6.8.44

As discussed under Policy GEN5 in Chapter 3, the [Revised Deposit Draft Local Plan] undershoots the 'The Choices Ahead' housing figure for Arun by 440 dwellings. In this situation, I find little justification for the Council removing by Pre-Inquiry Changes land allocated for housing in the Deposit Draft Plan. This is particularly so at North Bersted where the development industry requires certainty in order to bring forward essential infrastructure and make the best use of it[s] construction resources once established on site. Thus in overall terms I do not support PCs 34 and 46 in relation to the land south of Babsham Farm, but the local implications need to be assessed as described below.

6.8.45

… Taking account of these additions and my conclusions below on the open space allocation adjoining Berry Lane, I consider that the Council should examine the opportunity of increasing the capacity of the North Bersted section of SITE6 by at least a further 300 dwellings. Although included as a recommendation below, this is subject to the Council reviewing the implication of these further 300 or more homes for the educational and other local services and facilities, and on the transport network."

The details of the "additions" referred to in para 6.8.45 are immaterial for present purposes. So too are the details concerning the open space allocation adjoining Berry Lane, although they potentially affected the boundary between the open space and the southern part of the North Bersted housing allocation. In relation to the recommended figure of at least a further 300 dwellings, the inspector included a footnote stating that there was no consensus at the inquiry on the exact size of the northern part of the housing allocation, due in part to the lack of an agreed alignment of the relief road; and his recommendations would also affect the final figure. He therefore invited the District Council "to determine the likely number of dwellings that this site would provide, based on the best up-to-date information and the advice in PPG3".

Later in the same section the inspector dealt with the need for comprehensive development, stating:

“6.8.54

The Council's aim of achieving a co-ordinated implementation of SITE6 is clearly correct. In a perfect world no permissions should be granted here until it is beyond doubt that the full scheme would be successfully implemented in accordance with an agreed programme. However, given the fragmented ownership and differing expectations, I firmly believe a more pragmatic approach is necessary if progress is to be achieved.

6.8.55

I am attracted by the concept of the Development Brief being taken a further stage and a Master Plan and Implementation and Phasing Schedule prepared and agreed by the parties concerned ….”

Finally he considered whether the scheme could be delivered, expressing his conclusion as follows:

“6.8.58

Whilst not underestimating the task ahead, and assuming continued support from the key players involved here, I have no fundamental fears that Policy SITE6 cannot be delivered within the plan period to achieve the radical reshaping of Greater Bognor Regis. I well understand the views of those who do not wish to see change within their local area. But given the housing requirements set out in the Regional Guidance and the Government's aim of everyone having a decent home, I consider Policy SITE6 offers the best prospect of achieving real improvements to local living conditions within much of the urban area at the same time as accommodating new housing.”

There followed his recommendations on SITE6, the first of which was to substitute the following for the existing text:

“The area shown on the Proposals and Inset Maps will be developed for a mix of residential, employment and public open space, together with Relief Roads. Provision is made for:

(i)

(state hectarage) of land to accommodate 1,350 dwellings, which will consist of 650 dwellings at North Bersted and 700 dwellings at Felpham. 30% of these dwellings will be affordable housing provided in accordance with Policy DEV18 (this recommendation is made subject to the Council reviewing the implications set out in paragraph 6.8.45 above) …” (inspector's emphasis).

The inspector's report was published on 10 June 2002. On 1 July the District Council's Cabinet considered the report and resolved that the inspector's recommendations be accepted and the local plan be modified as appropriate. It also resolved to request the Environmental Scrutiny Committee to investigate the issue whether new primary schools were necessary in SITE6 or whether the existing primary schools should be expanded. There was a further meeting of the Cabinet on 9 September when, having considered the proposed modifications document, it decided to recommend it to a special meeting of the Full Council.

The officers' report to the Cabinet for its meeting on 1 July contained advice about the legal process, including this:

“Subsequently, the Council must consider any responses made to the modifications by the public and whether or not it considers that there is a need for further modifications and/or a second Public Inquiry. It is important to note that these decisions are matters for the Council and that the need or otherwise for a second Public Inquiry is based solely on the degree to which the proposed modifications do or do not raise matters which were not discussed at the first inquiry.

On the assumption that the Council decides that a second inquiry and/or further modifications are not necessary it must resolve to formally adopt the Plan ….”

Similar advice (though omitting the suggestion that the need for a second inquiry was based "solely" on the degree to which the proposed modifications raised matters discussed at the first inquiry) was contained in the officers' report for the Cabinet meeting on 9 September:

“Subsequently, the Council must consider any representations made on the modifications, and whether or not it considers that there is a need for further modifications and/or a second inquiry.

A second inquiry may be required if objections raise matters which were not at issue at the earlier inquiry. It is for the Council alone to decide whether or not this is necessary.”

The matter was considered by the Full Council on 17 September. The material sent to members included the report for the Cabinet meeting on 9 September and the proposed modifications document. Among the main views and comments recorded as having been raised at the meeting on 17 September were several concerning SITE6. They included concerns about the impact on the local community of such increased levels of housing and the need to address the lack of facilities in the area. An assurance was sought by members that the necessary infrastructure would be provided, and an assurance was given by the Head of Planning Services that the modifications were in accordance with the inspector's report. It was resolved to approve the proposed modifications, which were then placed on deposit for public consultation.

The proposed modification to policy SITE6 followed the inspector's recommendation, stating:

“The area shown on the Proposals and Inset Maps will be developed for a mix of residential, employment and public open space, together with Relief Roads. Provision is made for:

(i)

40.24 hectares of land to accommodate 1,350 dwellings, which will consist of 650 dwellings at North Bersted and 700 dwellings at Felpham. 30% of these dwellings will be affordable housing provided in accordance with Policy DEV18.”

The formal document containing the decision and statement of reasons for the modifications stated:

“The Council accepts the Inspector's reasoning and recommendations and has decided to modify Policy SITE6 as recommended ….

The Council has agreed a process and format for the preparation of a Development Brief for the allocation and this will be published separately for public consultation and will include reference to all other recommendations made by the Inspector but which do not require modifications to the Local Plan.

The Council has entered into discussions with West Sussex County Council so as to assess the needs for future schools resulting from SITE6 and the changing population structure and the outcome from this assessment will also be included within the proposed Development Brief ….”

The Parish Council objected to the proposed modification to policy SITE6. The reasons for objection included that the housing allocation had been substantially increased beyond that needed, and that the additional allocation of 300 houses to North Bersted would result in over provision and be contrary to the objectives of PPG3. There was also a section on review of infrastructure:

“The increase of housing provision from 350 to 650 was subject to a prior review of infrastructure requirements. There is an urgent need to commence this study and to consult widely amongst the community on its terms and scope, and of its overall aims. This study needs to be completed and assessed publicly. The implications for the local plan need to be considered, prior to the Local Plan coming forward for adoption. This was the intention of the Inspector in his report because of his reservations regarding the suitability of the area for significant additional development. This matter should be fully acknowledged by the Council and a timetable for implementation announced.”

On 25 November the Cabinet approved an officers' report which advised among other things that at its meeting on 16 December the Cabinet would need to consider whether or not a second inquiry was required.

Prior to the meeting on 16 December there was an exchange of correspondence between the Clerk of the Parish Council and the Leader of the District Council. The former wrote on 9 December, requesting that a second public inquiry be held into the modified policy SITE6. The letter stated that the proposal to increase the number of houses at North Bersted from 350 to 650 was not at issue when SITE6 was discussed at the first inquiry and that the objectors therefore had no opportunity to comment on the implications for their quality of life. The letter also repeated the Parish Council's concerns that the public should be involved in the review of infrastructure referred to in paragraph 6.8.45 of the inspector's report. In a considered reply, following discussion with the Head of Planning Services, the Leader of the District Council stated:

“I find it difficult to understand your Council's arguments regarding the size of the North Bersted housing allocation given that the Inspector devotes three paragraphs of his report … to this issue alone. Indeed, paragraph 6.8.45 together with the associated footnote makes it apparent that the issue was discussed at the Inquiry and the Inspector is equally explicit in his recommendations at paragraph 6.8.50. However, I do accept that, whilst the Inspector was satisfied in principle that the site could accommodate 650 dwellings in a way which met/addressed issues relating to infrastructure and surface water disposal/flooding matters (also discussed at the Inquiry), he did recommend that the detailed planning processes relating to the site would need to reflect the increase in housing at North Bersted that he was recommending.

As you will be aware, the Council's Cabinet and Full Council is considering the responses it wishes to make to representations received in response to objections to the Proposed Modifications (including those relating to Policy SITE6) and the resulting revisions to the process and timetable for the remaining stages of the Local Plan Review at their meetings on 16 December 2002 and 8 January 2003 respectively and officers are recommending that the Council publishes Further Proposed Modifications. On this basis I would not envisage the Council determining the need or otherwise for a second inquiry prior to its meeting on 19 March 2003 for the reasons given in today's report to Cabinet.”

The report to Cabinet for the meeting on 16 December included an appendix setting out recommended responses to each of the representations received. The main body of the report referred to that appendix when stating the following in respect of policy SITE6:

“The Cabinet will note that all of the 177 objections made in respect of the Proposed Modification to Policy SITE6 either raise matters of principle which were discussed and resolved at the Local Plan Inquiry and the Inspector's report and/or raise matters which can and should be addressed by the intended Development Brief and subsequent planning applications rather than the Local Plan Policy which allocates the land for development.

The Cabinet is also aware that Policy SITE6 was reworded in the Proposed Modifications precisely as recommended by the Inspector following the Local Plan Inquiry.

Therefore, whilst the comments made are and will be useful/informative in terms of future decision making regarding the implementation of Policy SITE6 (in the event that the Local Plan is adopted) they do not, in law, raise matters which are considered to require further changes to the Policy at this stage of the Local Plan process.”

The report did recommend some further proposed modifications unrelated to policy SITE6. It also made further references to the question of a second public inquiry, as follows:

“Future Local Plan Review Timetable

…

The Cabinet on 3rd March 2003 could consider and recommend further Proposed Modifications or recommend that a second Public Inquiry was necessary, but on the assumption that these measures are not necessary it would recommend that the Full Council resolves to formally adopt the Local Plan ….

The need (or otherwise) for a second Local Plan Inquiry

As set out earlier, this is a matter for the Council alone to determine but neither the Cabinet nor Full Council is yet in a position to come to a view on this issue. If the further Proposed Modifications are agreed it would be appropriate for this decision to be considered by the Cabinet at its meeting on 3rd March 2003 (when it is considering any representations regarding the further Proposed Modifications) before making appropriate recommendations to the Full Council at its meeting on 19th March 2003.”

The recommended response to the Parish Council's representations in respect of SITE6 stated:

“All matters relating to the principles of the Policy SITE6 allocation were discussed at the Local Plan Inquiry and Modification 136 precisely follows the Inspector's recommendations. The increase in the number of dwellings to 650 at North Bersted reflects Inspector's recommendation no. 6.8.59 …. Issues of: infrastructure, flooding, transport and traffic, employment, agricultural land and nature conservation have already been considered by the Inspector at the Local Plan Inquiry. The Council is publishing a draft Development Brief and Master Plan for SITE6. Such work includes an independent engineering audit of flood risk associated with the development and the surrounding area. The Council's Environmental Scrutiny Committee, jointly with West Sussex County Council, is undertaking a review of educational provision at SITE6. This is not a matter that needs to be resolved prior to the adoption of the Local Plan allocation as it can be addressed by the SITE6 Development Brief. This policy, as modified, makes it clear that all infrastructure issues arising from the allocation can and will be addressed by the Development Brief. Policy SITE6, associated text and map changes are consistent with Inspector's recommendations 6.8.59-6.8.70.”

The Cabinet decided to put the recommendations in the report to the Full Council which, at its meeting on 8 January 2003, resolved to agree them. The minutes show that some concerns were raised about policy SITE6 in view of the number of objections received, particularly on flooding and infrastructure issues. Members were told that the issues would be covered in the development brief, which would be circulated prior to being presented to Full Council on 19 March 2003 and then put out to public consultation.

The further proposed modifications were duly placed on deposit for public consultation. An officers' report for the meeting of the Full Council on 19 March 2003 stated the number of objections and supporting representations received within the time laid down in respect of the further proposed modifications. In addition, "[a]pproximately 200 representations were declared non-valid as they did not relate to Further Proposed Modifications". The report appended proposed responses to the representations in respect of the further proposed modifications. The next steps as regards "the legal options/implications" were described as follows:

“3.1

The Local Plan Review is now at a very advanced stage and in law the Council has limited options regarding the next steps it can take to progress and/or alter the direction of the review. Because the law recognises the validity of earlier legal stages the Council cannot revisit earlier stages (now concluded) in respect of specific issues/policies (even if it was considered right to do so and/or there was a desire to do so) without significantly affecting other aspects of the Plan and process and/or making itself extremely vulnerable to a break down in the plan led system and/or successful legal challenges.

3.2

Essentially, the options before the Council at this late stage in the review are:-

A)

Agree the responses to the representations made … and resolve to adopt the Plan ….

B)

Reject the recommended responses to representations and instruct officers to arrange a Modifications Inquiry into issues raised by the representations received.

Implications: This would be an inquiry into the relevant Further Proposed Modification or Modifications only as it is not now possible (in law) for the Council to hold a second Modifications Inquiry into the previously published Proposed Modifications without first placing further relevant Modifications on deposit for public consultation. Obviously such a process would seriously delay the review process, make the Council vulnerable to legal challenge by those who may be happy with the Plan as now written and could lead to a break down of the plan system within the District.

…

3.3

It is not considered that any of the representations received raise issues which would prevent the Council from resolving to adopt the Local Plan without any further modification” (original emphasis).

At the meeting of the Full Council, the Head of Planning Services briefly presented the report and repeated that in law the council had "limited options" regarding the next steps it could take. In the subsequent discussion, much concern was expressed by some members in relation to policy SITE6. The minutes then record:

“An amendment was proposed and seconded to 'adopt the Arun District Local Plan in 2003 with the exception of Policy Site 6 to enable all issues to be fully investigated and satisfactorily resolved'.

(The meeting then adjourned to allow the Chairman to take advice from the Solicitor to the Council and the Head of Planning Services on the implications of this amendment.)

On reconvening the meeting, the Head of Planning Services explained that the amendment proposed was unlawful as the law recognised the validity of earlier legal stages and so the Council could not revisit earlier stages that had been concluded. The options before the Council were clearly outlined and Members were referred to the report that set out the legal options/implications at this late stage of the review.

On the amendment being put to the vote, it was declared LOST.

…

A further amendment was proposed and seconded to 'adopt the Arun District Local Plan with the exception of Policy Site 6 with the Council recommending that the Cabinet Member for Planning sets up and holds a second Public Inquiry into Policy Site 6'.

(The meeting then adjourned to allow the Chairman to take advice from the Solicitor to the Council and the Head of Planning Services on the implications of this amendment.)

On reconvening the meeting, the Head of Planning Services explained that the amendment proposed was unlawful as the law recognised the validity of earlier legal stages and so the Council could not revisit earlier stages that had been concluded. The options before the Council were again outlined andMembers were referred to the report that outlined the options that were before the Council at this late stage of the review. The advice given by the Head of Planning Services was reinforced by the Solicitor to the Council.

In responding, the Deputy Leader explained that the issues of concern raised would be covered within the Development Brief and would involve discussions with the Primary Care Trust and West Sussex County Council.

On the amendment being put to the vote, it was declared LOST …” (original italics).

The Full Council then resolved, by a majority of 31 to 14 with 2 abstentions, to agree the responses to the further proposed modifications and to adopt the Arun District Local Plan on 17 April 2003.

A revised draft of the development brief was not put before the Full Council at the March meeting as had previously been intended. It was not available until July 2003, when it was issued for public consultation.

Section 287 of the Town and Country Planning Act 1990, under which the present challenge is brought, provides:

“(1)

If any person aggrieved by … a local plan … or by any alteration or replacement of any such plan … desires to question the validity of the plan or, as the case may be, the alteration or replacement 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, or, as the case may be, its alteration or replacement,

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, or, as the case may be, the alteration or replacement 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 or, as the case may be, the alteration or replacement either generally or in so far as it affects any property of the applicant.”

Section 36 of the 1990 Act requires local planning authorities to prepare a local plan for their area. Section 39 provides that they may at any time prepare proposals for the replacement of the local plan. Section 40 provides for public participation in the process and includes a requirement that a local plan or proposals for its replacement shall not be adopted until the authority has considered any objections made in accordance with the relevant regulations. Section 42 deals with local inquiries. Section 42(1) requires, in effect, that a local inquiry be held for the purpose of considering objections to the deposit draft of a local plan or of proposals for its replacement. As already indicated, such an inquiry was held in the present case. Section 42(2) confers a discretion to hold a local inquiry in other circumstances. That is the provision by virtue of which the District Council was empowered to hold a further inquiry, for the purpose of considering the objections to the proposed modifications, if it chose to do so.

The relevant regulations are the Town and Country Planning (Development Plan) (England) Regulations 1999. Regulation 27 provides that where a local planning authority causes a local inquiry to be held, the authority shall, after considering the report of the person holding the inquiry, prepare a statement of (a) the decisions it has reached in the light of the report and any recommendation contained in the report, and (b) the reasons for any of those decisions which do not follow a recommendation contained in the report. Regulation 28 provides that where objections have been made and the authority does not hold a local inquiry, it shall prepare a statement of its decisions as respects all the objections and its reasons for each decision.

Regulation 29 concerns modification of proposals. Para (1) provides that where, after an inquiry, the authority proposes to modify its original proposals, it must prepare and publish a list of the modifications with reasons for proposing them. By para (2) a period of six weeks is allowed for objections and representations in respect of proposed modifications, and by para (3) objections and representations are to be made in writing. Paras (5) and (6) then loop back in to the earlier procedural provisions:

“(5)

Where a local inquiry or other hearing is held to consider one or more of the objections made to proposed modifications, regulation 26 shall apply as that regulation applies in the case of a plan or proposals, and regulation 27 shall apply following such a local inquiry or other hearing as it applies to a local inquiry or other hearing mentioned in paragraph (1) of that regulation.

(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 to be held, regulation 28 shall apply to the consideration of the objections as it applies to the consideration of objections to statutory plan proposals”

I have been referred to a number of authorities concerning the local planning authority's discretionary power to hold a further inquiry. In Warren v. Uttlesford DC [1997] JPL 1130 a challenge to a decision not to hold an inquiry was rejected and the subsequent appeal was dismissed. In the Court of Appeal Schiemann LJ, giving the leading judgment, said (at 1134-5):

“The question before the court in an application under section 287 is whether the adoption of the plan in all the circumstances of the case was within the powers conferred on the Local Authority by the Act. Clearly if the Authority, in not arranging for a new inquiry, behaved in a manner which was outside the limits of the discretion given to it by the Act or failed to take into account a relevant matter such as any unfairness to the applicants then the Plan would be liable to be struck down. The fundamental difficulty with [counsel for the applicants'] submission is that the development plan process involves innumerable people and very many conflicting desiderata. It is easy to have a situation where this or that interest group is placed at a significant disadvantage because of the way things have developed during the process. The disadvantages will not all be the same disadvantages yet many of them will interact the one with the other. There can be a conflict between the desirability of ensuring that no one is treated unfairly and the desirability of reaching a decision swiftly. Treating one person more fairly may mean treating someone else less fairly. These are matters which the LPA is more suited to balance against each other than the court. In my judgment the correct approach by this court is to ask itself whether, on normal judicial review principles as applied to local authorities, the decision not to open a new inquiry was an illegal one.

Some things are clear and are I think common ground.

1.

One of the matters which an 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 ….”

Drexfine Holdings Ltd. v. Cherwell DC [1998] JPL 361 also concerned a decision not to hold a further inquiry into a local plan. Robin Purchas QC, sitting as a deputy High Court Judge, held that the decision was unlawful and quashed the relevant part of the local plan. In the course of his judgment he stated (372-3):

“… Parliament did consider it appropriate expressly to provide the authority with the power in its discretion to hold a further inquiry. The fact that a proposed modification involves issues which have not been the subject of consideration at the deposit stage could be a highly material consideration in determining whether or not a further inquiry should be held. 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 PPG12 [that it will not normally be necessary to hold a further inquiry into matters already considered, etc.];

(3)

the practical implications of a second inquiry and, in particular, whether it would 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 the 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 usual Wednesbury principles.”

Mr Harwood, on behalf of the Parish Council, submits that the District Council fell into error in a number of ways in relation to the question whether to hold a second inquiry:

For the District Council, Mr Price Lewis QC accepts that at the meeting of the Full Council on 8 January 2003 the question of a second inquiry was deferred to the meeting on 19 March. He submits, however, that when the Full Council then considered the matter on 19 March, it decided to adopt the local plan without holding a further inquiry and that it took into account the material considerations set out in Drexfine in reaching its decision. Members acted on the basis of an officers' report which recognised that one option was to hold an inquiry into issues raised by the representations received, but advised that none of those representations was considered to raise issues which would prevent the council from resolving to adopt the local plan without further modifications or therefore a further inquiry. The advice given at the meeting itself in relation to the proposed amendments was correct. As regards the Drexfine considerations, (1) the size of the housing allocation had been considered by the inspector, members had been advised that only objections raising new matters might justify a new inquiry, and members had also been advised that the representations received did not raise new issues; (2) the current advice in PPG12 had been reported to members; (3) and (4) members had been advised in the officers' report that a second inquiry would seriously delay the review process; and (5) in terms of fairness to the counter-objectors, members were aware that the issue of the extra housing had been debated at the first inquiry, with the arguments against extra housing on the publicly accessible landscape area being put forward by the District Council at the inquiry.

In my judgment it is clear that the District Council fell into legal error in relation to the question of a second inquiry. The right time to consider whether to hold a further inquiry to consider the objections to the proposed modifications to policy SITE6 was in January 2003, when the decision was made to proceed to the next stage of the procedure by way of the issue of further proposed modifications. At that point members effectively decided that the proposed modifications to policy SITE6 should stand without further change and that further proposed modifications should be made only in respect of certain unconnected matters. They acted in accordance with the advice given in the officers' report that the representations received in respect of policy SITE6 did not require further changes to that policy and that further proposed modifications were appropriate only in respect of unconnected matters. This amounted to a decision not to make any changes in the light of the objections to the proposed modifications to policy SITE6. That decision was reached, however, without considering whether to hold a further inquiry into the representations received in respect of that policy.

I accept that it might have been possible to correct that error in March 2003 when the members met to consider the representations received in respect of the further proposed modifications. At that stage they could have gone back to the proposed modifications to policy SITE6, and the objections to those proposed modifications, and asked themselves whether it was appropriate after all to hold an inquiry in the light of those objections and the overall circumstances as they now existed. Such a course might have had its procedural difficulties, given that the District Council would have been dealing on that basis with a mix of proposed modifications and further proposed modifications, but I do not think that the difficulties would have been insuperable.

What actually happened at the meeting on 19 March 2003, however, compounded the earlier error rather than correcting it. The officers' report and the advice given in the course of the meeting led members away from considering whether it would be appropriate to hold a further inquiry into objections to the proposed modifications to policy SITE6. It seems to me that the section of the officers' report dealing with legal options, including the question of a further inquiry, was focusing on the representations in relation to the further proposed modifications (i.e. in respect of matters unconnected with policy SITE6) rather than on representations relating to the original proposed modifications (including those in respect of policy SITE6). This is supported by the fact that representations received at this stage had been rejected where they related to matters other than the further proposed modifications.

In any event, if the report did technically leave open the possibility of a further inquiry into the representations received in relation to the original proposed modifications, it did so in terms that were at best confused and that failed to direct members correctly or clearly about the need to reach a considered view on the appropriateness of a further inquiry into those original proposed modifications. The advice given in the report, and even more so the advice given at the meeting, pushed members away from addressing the substantive question whether such an inquiry was appropriate.

Finally, and conclusively, it is clear that members did not have their attention drawn at any time to all the considerations that were relevant to a decision whether to hold an inquiry into the objections to the proposed modifications to policy SITE6. The one thing they were told, in the report for the Cabinet meeting on 9 September 2002 which was also sent to members for the Full Council meeting on 17 September, was that a second inquiry might be required if objections raised matters which were not in issue at the earlier inquiry. Their attention was not drawn to the list of other potentially relevant considerations in Drexfine, including in particular the question of fairness to objectors and other parties. Even if, therefore, the members are to be taken to have decided that an inquiry into the representations relating to the proposed modifications to policy SITE6 would not be appropriate, any such decision was flawed by a failure to take into account relevant considerations.

In short, at no time was the question of an inquiry into the representations relating to the proposed modifications to policy SITE6 properly addressed.

Whether that error should lead to the grant of relief quashing the relevant part of the local plan is best considered after determining the second substantive issue in the case.

Mr Harwood submits under this head that the primary error of the District Council was to misconstrue the inspector's report. The inspector's recommendation to add at least 300 further houses at North Bersted was expressed to be subject to a review of infrastructure. It was a conditional recommendation which contemplated that a review would precede any decision to make provision for additional housing in the local plan. Such a review was needed in order to determine whether the environmental cost of the infrastructure would be acceptable, e.g. if there was a need to locate a new primary school or health or other facilities on greenfield land. The District Council, however, proceeded on the mistaken basis that the question of infrastructure could be addressed by the development brief after adoption of the local plan.

Mr Harwood characterises that primary error or its consequences in a number of different ways: (i) the council erred in law in considering that a development brief could address a matter fixed by the development plan, namely how much housing should be provided; (ii) the council misunderstood the inspector's report and consequently failed to have regard to a material consideration; (iii) representations that challenged the failure to consider infrastructure provision before making the local plan allocation for extra housing were dismissed as legally irrelevant, and the council thereby failed to have regard to those objections as a material consideration; (iv) the council failed to give reasons for making the modification without reviewing the implications of further housing on educational, transport and other infrastructure which the inspector had said needed to be considered first; and (v) the council failed to publicise, together with reasons as required by reg 27 of the 1999 Regulations, the fact that it was rejecting the inspector's recommendation that a review of infrastructure was required before increasing the housing allocation.

Mr Price Lewis submits that the District Council's interpretation of the inspector's report must be seen against the background of the development briefs which ran in parallel with the local plan review. From the early days of preparation of the local plan the council had dealt with the question of infrastructure by means of development briefs. Those briefs were not intended to form part of the local plan but set out the details of how policies in the plan would be applied in practice. They were subject to a process of non-statutory consultation and review. The inspector had before him the version decided on in October 2000, which was based on an allocation of 350 dwellings for North Bersted and made provision for meeting the additional infrastructure requirements of such an allocation, including educational facilities, other local services and facilities, and transport. The inspector was therefore aware that the council had been dealing with the infrastructure requirements in this way and was aware of what was proposed for North Bersted. In para 6.8.55 of his report he supported the concept of the development brief and recommended that it be taken a stage further by the preparation of a master plan and implementation and phasing schedule, which would involve the full listing of the contributions required from the developers towards infrastructure services and facilities. Further, the provision of the requisite infrastructure before development was permitted was ensured by policy GEN8, which provided in terms that "development will not be permitted unless the infrastructure or facilities made necessary by the development are available or will be provided at the appropriate time".

It was against that background, submits Mr Price Lewis, that the District Council understood the inspector not to be imposing a precondition to inclusion of additional dwellings in the North Bersted allocation in accordance with his recommendation, but as requiring the council to carry out, as part of the development brief process, separate work of review of the implications of the inclusion of that additional number of dwellings. That is how the matter was dealt with in the council's statement of reasons for the proposed modifications in respect of policy SITE6, which gave effect to the inspector's recommendations. It was in the circumstances a reasonable interpretation of the inspector's report and the court should therefore not interfere with it.

In any event, submits Mr Price Lewis, the District Council did review the infrastructure implications of the additional housing. This is covered in detail in the witness statement of Mr Paul Collins, who was the council's Head of Planning Services at all material times until early April 2003. He refers to various groups of people whose work considered that question: a Members Advisory Group, which included members of the District Council and of the claimant Parish Council; a Strategic Issues Team, led by council officers, which was convened to review and update the October 2000 draft of the development brief in parallel with the remaining stages of the local plan review; and a Development Implementation Team, established with the purpose of reviewing and negotiating detailed infrastructure matters. Mr Collins refers to numerous passages in the contemporaneous documentation showing that the matters examined included educational facilities, local services and facilities, and the transport network.

Mr Collins also expresses himself "satisfied" that, by the time the Cabinet and the Full Council met to agree the proposed modifications for public consultation, "the review had produced sufficient information to demonstrate that the infrastructure necessary to support the 650 dwellings proposed for Bersted could and would be provided at the appropriate time through the Development brief and the subsequent planning application process." he says that even more information was available to support this view by the time the Cabinet and the Full Council considered the representations in relation to the proposed modifications in December 2002 / January 2003. He states that by the time the Full Council considered the report leading to the adoption of the local plan itself, i.e. March 2003, "as the senior officer responsible I was entirely satisfied that all the infrastructure issues could and would be addressed and relevant [District Council] members who had been involved throughout were equally satisfied."

Mr Collins states that the remaining questions of precisely how, where and in what form the infrastructure requirements were to be met were intended to be progressed through the development brief. It had been intended that the development brief would be ready for adoption at the same time as the local plan. Unfortunately it was delayed. A revised version of the development brief was published for consultation in July 2003 and, it is contended, clearly demonstrates that all infrastructure needs generated by the housing allocation can and will be met.

That line of evidence and argument is countered by Mr Harwood in a number of ways. He submits that what Mr Collins, as a planning officer, says about having addressed the infrastructure implications and being satisfied that they can be met does not equate to the District Council's position on the subject. At no point did the District Council, before adopting the local plan, express itself satisfied that the relevant infrastructure requirements could and would be met. It left them to be addressed separately through the development brief process, as its statement of reasons for the proposed modifications makes clear. The court should not allow it to rely now on reasons different from those given at the time: cf. R v. Westminster City Council, ex parte Ermakov [1996] 2 All ER 302, 316-317; see also Rumsey v. Secretary of State for the Environment, Transport and the Regions (2001) 81 P&CR 465 at 472 para 23. In any event the views expressed by Mr Collins are not those of the District Council and have not been adopted by it. The Members Advisory Group is only an informal advisory group and is not the same thing as the District Council itself. Further, decisions on infrastructure matters had not been reached at the time of the adoption of the local plan. Even the revised draft development brief did not appear until later. Examination of the development brief shows that even now the location of important facilities, namely the primary school and doctor's surgery, is uncertain and, because it would involve use of land allocated as public open space, is liable to give rise to environmental issues that have not been assessed. All that goes to support the view that these matters should have been fully considered, as the inspector intended, before a decision was made as to the size of the North Bersted housing allocation.

My conclusions on this issue are as follows. First, in my judgment the inspector's report is properly to be read as recommending that the additional housing be included in the North Bersted allocation provided that - and to the extent that - the implications of such an increase for the infrastructure were found to be acceptable. The inspector envisaged work on the infrastructure implications not as a parallel or subsequent exercise, but as a means of determining how much additional housing could properly be included in the allocation. Thus a review of the infrastructure implications was put forward as a precondition to the inclusion of a higher allocation. I reach that conclusion for these reasons:

It follows that in my judgment the District Council misinterpreted the inspector's report in proceeding on the basis that 300 additional dwellings (giving a total of 650) could be included in the North Bersted allocation without first determining whether the infrastructure could support such an increase. That it did proceed on that basis seems to me to be clear both from its written statement of reasons for the proposed modifications to policy SITE6 and from the whole tenor of its consideration of the issue at the time. The infrastructure implications were left for consideration separately in the context of the development brief. I do not consider that to have been an interpretation of the report reasonably open to the District Council.

Further, I do not accept that the District Council had in fact satisfied itself that the infrastructure implications were acceptable by the time of its resolution in March 2003 to adopt the local plan, let alone by the time it decided to issue the proposed modifications to policy SITE6 in September 2002 or to make no further changes in respect of the policy in January 2003. Whatever individual officers may have thought, and whatever may have been the views of those individual members of the council who were involved in the work of the Members Advisory Group, there was no considered assessment of the issue by the Full Council. No thought was given to it for the simple reason that it was being dealt with separately in the context of the development brief. The revised development brief was not available for consideration by the Full Council even at the time of adoption of the local plan and cannot have been taken into account in reaching that decision.

I would add that the evidence does not go as far as an assertion by the District Council that members were satisfied that the infrastructure implications were acceptable at the time of the relevant decisions. The personal views of Mr Collins, or the views attributed by him to members on the Members Advisory Committee, fall short of such an assertion. Had there been such an assertion, I would have treated it with very considerable caution, in view of the contents of the contemporaneous documents and the authorities cited by Mr Harwood concerning a decision-maker's subsequent reliance on reasons different from those given at the material time. In the circumstances, however, I do not need to dwell on those authorities.

For those reasons I conclude that the District Council proceeded on the basis of a misinterpretation of the inspector's report and that this was a material error. It resulted in a decision to include the North Bersted housing allocation in the local plan without first considering whether the infrastructure could be provided to support that level of housing. In my view that is a sufficient basis upon which to find in the claimant's favour on this issue, without examining the various different ways in which Mr Harwood sought to characterise the District Council's error.

Here, too, it is necessary to go on to consider the question whether the error should lead to the quashing of the relevant part of the local plan.

Mr Harwood submits, and I understand it to be common ground, that there is no statutory requirement for the Parish Council to show substantial prejudice in this case. In terms of s.287 of the 1990 Act, the errors relied on are not failures to comply with relevant requirements (in respect of which the statute does impose a test of substantial prejudice) but are such that the adoption of the local plan was outside the powers of the District Council: see, as regards the issue of a second inquiry, the passage from Warren quoted above.

Mr Harwood submits further that the court should be slow to withhold relief to quash in such a case. He says that he has not identified any case under s.287 where a quashing order has been refused in the exercise of court's discretion. In Berkeley v. Secretary of State for the Environment [2001] 2 AC 603, albeit itself a case on regulations implementing an EC directive, Lord Bingham observed that "[e]ven in a purely domestic context, the discretion of the court to do other than quash the relevant order or action where such excessive exercise of power is shown is very narrow" (608D).

On the facts, submits Mr Harwood, there is an insufficient basis for withholding relief. The District Council has not even considered whether it should exercise the power to hold a second inquiry. It is therefore difficult for the court to be satisfied that the council would necessarily have decided not to hold such an inquiry. It should also be borne in mind that there was a substantial vote against the resolution adopting the plan and that votes were forced on the amendments even in the face of legal advice. A quashing order would relate only to the North Bersted housing allocation and, although it would not be possible simply to retake the decision concerning that allocation, it would be open to the District Council to initiate the procedure to alter the adopted plan.

In relation to the infrastructure issue Mr Harwood again relies on the submission that, even on the basis of the development brief issued for consultation in July 2003, there are significant infrastructure issues calling for assessment and the exercise of planning judgment, in particular the appropriateness of locating facilities on land allocated as public open space. There is also an issue, arising out of a recent urban capacity study, as to whether a greater amount of housing can be provided out of previously developed land so that less needs to be provided from greenfield sites. Although Mr Collins, in a second witness statement, states that the urban capacity study supports the allocation in the adopted local plan, Mr Harwood submits that the issue is one that requires the exercise of planning judgment and therefore tells in favour of a quashing order so that the housing allocation can be assessed by the District Council in the light of all the information now available.

On behalf of the District Council, by contrast, Mr Price Lewis submits that the court can and should withhold relief. He draws attention to First Corporate Shipping Ltd v. North Somerset Council [2001] EWCA Civ 693, a case under s.287 of the 1990 Act. The central question in that case was whether the decision of a local planning authority not to hold a further inquiry into objections to proposed modifications to a local plan was reasonable. The judge at first instance held that it was. The Court of Appeal took the same view and dismissed the appeal. In addition, however, Buxton LJ made observations obiter, with which the other members of the court agreed, concerning the need for caution in the exercise of discretion to quash parts of a local plan:

“38.

To grant a remedy in terms of quashing may be a logical remedy attached to a complaint made where the investigative process has come to an end and the error complained of is irrationality or unfairness of a public law nature in the actual proposals adopted, that is to say an error in the rational process of thinking of the local authority; but here the irrationality is said to be not in the result that the local authority produced but in its failure to take a particular procedural step. It is very much more difficult to see how quashing can be a justified response to such an error. It is even more difficult to see how a justified response to such an error can be to quash a part of the plan in respect of which no actual complaint was made by the applicant. If I thought, which I have already indicated that I do not, that there had been public law error in this case in terms of not requiring a public inquiry, by far the most obvious remedy for that error in public law terms would be either a declaration on the part of this court or a remission of the matter to the local authority. Neither of those remedies is available under section 287. That means (and I say this only as a matter of comment) that if a court found itself in a position where there had been such an error it would have to consider very carefully in terms of its discretion whether, nonetheless, it was appropriate to articulate that error and give relief in terms of quashing part of the plan. I mention this point because it was a matter of some concern, certainly to me and I think also to my Lords, as to how this jurisdiction could properly be administered.”

Mr Price Lewis submits that that reasoning applies to the present case and should cause the court to be very cautious about exercising a discretion to quash part of the local plan. In any event he submits that on the facts the court can be satisfied that, if the question of a second inquiry had been considered properly, the District Council would have decided not to hold one and could not rationally have reached any other decision. The matters that the Parish Council wished to raise had been considered in detail by the inspector and the proposed allocation had received his strong support. Fairness to the Parish Council did not require a further inquiry.

As to the infrastructure issue, Mr Price Lewis's submissions centre on the evidence of Mr Collins that the infrastructure implications were in fact reviewed before the decision to include the additional housing allocation for North Bersted and have in any event now been considered, the conclusions being reflected in the draft development brief issued for consultation in July 2003.

A further reason that Mr Price Lewis advances for withholding relief is that to quash the North Bersted housing allocation would disrupt the entire housing strategy for the district. The inspector supported the comprehensive nature of the development; and upon the housing depends the construction of the relief road, which is also important for access to the Felpham housing allocation. The SITE6 housing allocation provides about 1,350 out of the total of 1,530 new houses needed in the district. In all the circumstances, Mr Price Lewis submits, it would be wrong to create the delay and uncertainty that would be caused by requiring the District Council to go back to square one.

The arguments have been presented with skill and thoroughness on both sides. I hope that my summary does justice to them. In any event my conclusions on them can be stated relatively briefly. In my judgment the District Council's errors were such as to make it appropriate for me to grant relief quashing the relevant part of the local plan. In reaching that view I have been particularly influenced by the following considerations:

It follows that the claim succeeds and that an order will be granted to quash the relevant part of the local plan. It should be possible for the parties to agree on the form of order, but I will hear from counsel if necessary.