Royal Courts of Justice
Strand
London WC2
B E F O R E:
RABINDER SINGH QC
THE QUEEN ON THE APPLICATION OF MAWLE
(CLAIMANTS)
-v-
WEST OXFORDSHIRE DISTRICT COUNCIL
(DEFENDANT)
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MR M LOWE QC (instructed by Burges Salmon) appeared on behalf of the CLAIMANTS
MR J STEEL QC AND MR R WHITE (instructed by Sharpe Pritchard) appeared on behalf of the DEFENDANT
MISS A BICARREQUI attended for the judgment on behalf of the DEFENDANT
J U D G M E N T
RABINDER SINGH QC:
Introduction
This is an application under section 287(2)(b) of the Town and Country Planning Act 1990 in respect of the West Oxfordshire Local Plan adopted on 16th June 2006, to which I will refer as "the Plan".
At the hearing permission was sought to amend the particulars of claim, as anticipated in the claimants' skeleton argument at paragraph 53. I granted permission to do so without objection from the defendant. Certain matters were raised in the original grounds which, it was made clear in the skeleton argument and the amended grounds, were not being pursued, in particular paragraph 3.4 of the original grounds and certain parts of the relief sought from the court at paragraph 4.1. I will make no further reference to them in this judgment.
I will confine myself to the two main issues raised by this application and also certain ancillary issues. The claimants seek to have quashed certain parts of the Plan which relate to (1) the Cogges Link Road ("CLR") and (2) the North Curbridge Development Area ("North Curbridge").
The claimants are trustees of trusts that own land to the east of Witney comprised in the East Witney Land Consortium. The Consortium made representations to the West Oxfordshire Deposit Draft Local Plan 2011. The defendant is the local planning authority with responsibility for drawing up the Local Plan for its area which includes Witney.
The Development Plan Process
The plan was placed on first deposit in September 2001. At this time, the Consortium supported the proposal for the CLR which was in this draft of the plan. A revised deposit draft was published in February 2003. There was no opportunity to object to provisions in the draft which were not new in the revised version. The proposal for the CLR had continued unchanged as before.
An inquiry was held by the Local Plan Inspector between 6th July 2004 and 6th January 2005. At the inquiry, it is common ground that there were duly-made objections by certain other persons to the CLR, notably the local branch of the Campaign for the Preservation of Rural England. It is also common ground that there were no duly-made objections to the CLR on behalf of the Consortium, although by this stage it did object to it. Nevertheless, and again this is not in dispute, the Local Plan Inspector was entitled to look into the duly-made objections to the CLR. I will return to this later.
The Local Plan Inspector's report was published in June 2005. The defendant considered its response to that report at meetings of its Development Control Committee on 7th October 2005. It published its proposed modifications on 4th November 2005, to which the Consortium made objections. The defendant considered representations made on its proposed modifications on 11th April 2006. It adopted the Plan on 16th June 2006 and gave due notice of that on 23rd June 2006.
Relevant Legislation
Section 287 of the Town and Country Planning Act 1990, so far as material provides:
A person aggrieved by a relevant document [I interpose that it is common ground that that includes a Local Plan] may make an application to the High Court on the ground that --
it is not within the appropriate power; or
a procedural requirement has not been complied with . . .
(3A) Subsection 3B applies if the High Court is satisfied --
that a relevant document is to any extent outside the appropriate power;
that the interests of the applicant have been substantially prejudiced by a failure to comply with a procedural requirement.
(3B) The High Court may quash the relevant document --
wholly or in part;
generally, or as it affects the property of the applicant."
Also relevant is Part 5 of the Town and Country Planning (Development Plan) (England) Regulations 1999 (SI 1999 No.3280). This sets out in detail the procedure which has to be followed in the process of formulating, amongst other plans, a Local Plan. I will not unduly lengthen this judgment by setting out those provisions in detail here. They are familiar to the parties and can and should be referred to as necessary as if they were incorporated into the text of this judgment.
Relevant Legal Principles
The relevant legal principles applicable to a case such as this were not in dispute. It was common ground that they are conveniently summarised in the judgment of Forbes J in Braithwaite v Doncaster Metropolitan Borough Council (Crown Office number 3435/1998, 17th March 2000). At pages 18 and 19 of that judgment Forbes J set out the relevant principles of law and I will quote him so far as relevant:
The decision-maker must give proper, adequate and intelligible reasons which deal with the substantial points which have been raised: see Save Britain's Heritage v Number 1 Poultry Limited [1991] 1 WLR 153.
A deficiency in the reasons will only amount to a breach of the statutory requirements if the interests of the applicant have been substantially prejudiced thereby: see Save Britain's Heritage (Supra) at page 167 C to H.
The onus is on the applicant to satisfy the court that there has been a failure by the decision-maker to give reasons which satisfy the statutory requirements: see Save Britain's Heritage (Supra) at page 168 C.
The reasons to be considered are those which were given at the time of the decision: see British Railways Board v Slough Borough Council [1993] 2 PLR 42 at page 49 B to C.
The adequacy of reasons must be assessed by reference to whether the decision in question leaves room for genuine doubt as to what the decision-maker has decided and why. This issue must be resolved on a straightforward down-to-earth reading of the decision without excessive legalism or exegetical sophistication: see Clarke Homes Limited v Secretary of State for the Environment and East Staffordshire DC [1993] 66 P&CR 263 at pages 271 to 272.
The weight to be attached to material considerations and therefore matters of planning judgment are, for the purposes of this case, within the exclusive jurisdiction of the local planning authority: see Tesco Stores v Secretary of State [1995] 1 WLR 759.
In the local plan preparation process where the Council is both proposer and arbiter, the obligation to deal thoroughly, conscientiously and fairly with any objection is enhanced: see Stirk v Bridge North DC [1997] 73 P&CR 439 at page 444 per Thorpe LJ."
I did not understand Mr Lowe QC, who appeared on behalf of the claimants in this case, to submit that points (8) to (10) in the judgment of Forbes J were relevant to the present case. Those points were concerned with the circumstances in which a decision by the local planning authority not to hold a further inquiry will be subject to review by the courts.
It was also urged upon me by Mr Lowe, basing himself upon the decision of Sullivan J in Second Sight Property Holdings Limited v Borough of Poole [2004] EWHC 2526 that the defendant was under a duty to consider both the report and recommendations of the Local Plan Inspector fairly and with an open mind, and to grapple with the reasoning underlying his recommendations. I do bear that in mind. I also bear in mind that, as Mr Steel QC who appeared for the defendant with Mr White reminded me, in Second Sight at paragraph 48 Sullivan J said this in the context of a local planning authority's responses to a report by the Local Plan Inspector:
" . . . It is important to bear in mind that such documents are not to be construed as though they were statutes. The defendant's officers were not writing an examination paper in town and country planning, much less were they required to pass that paper with a starred first."
I should also set out a recent summary of what is required by the duty to give reasons. In South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953 at paragraphs 35 to 36 in the Opinion of Lord Brown of Eaton-under-Heywood:
It may perhaps help at this point to attempt some broad summary of the authorities governing the proper approach to a reasons challenge in the planning context. Clearly what follows cannot be regarded as definitive or exhaustive nor, I fear, will it avoid all need for future citation of authority. It should, however, serve to focus the reader's attention on the main considerations to have in mind when contemplating a reasons challenge and if generally its tendency is to discourage such challenges I for one would count that a benefit.
The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
Finally, but importantly, on the legal principles, it is also common ground that the local planning authority is not bound to follow the recommendations of the Local Plan Inspector.
The CLR Issue
I will try to summarise as briefly as convenient here the facts relating to the CLR issue. The starting point is the Deposit Draft Plan (bundle 2 at pages 99 to 100). At that stage the Draft Plan had a box headed "Transport Objectives for Witney" and it included, amongst the bullet points under that heading:
"• to introduce measures to minimise the impact of traffic on the town . . .
• to reduce and/or slow traffic flows in environmentally sensitive parts of the town, particularly the town centre."
At paragraph 4.3 of the text, the draft said as follows:
"Three road proposals from the 1997 Local Plan remain to be built, ie the North East Witney Distributor, Cogges Link Road and West End Link Road. These are included in the Local Transport Plan. Without an additional river crossing in Witney there is little opportunity to improve conditions in the Bridge Street area."
Under the heading of "Transport Proposals" and a further heading "Highways and A40 Access", there was what was called "Witney Proposal 10 Construction of New Highways" and at (b) that proposal included this:
"Cogges Link Road -- the construction of a new highway from Oxford Hill (B4022) crossing the River Windrush to join the southern section of Witan Way."
At paragraph 4.7 of the text there was again reference to the CLR:
"Cogges Link Road -- this road will provide a second river crossing and enable traffic to be removed from the central area, especially Bridge Street. Detailed planning permission for the road was granted by Oxfordshire County Council in January 1997. An application to renew consent was submitted at the beginning of 2002. Construction of the new river crossing has been awaiting the completion of legal agreements (to secure funding) from the North East Development Area and the completion of necessary land acquisitions."
In passing I should also note that at paragraph 4.8 of the text there is a reference to the West End Link Road and it is noted that this road was added to the Development Plan following a local plan inquiry in 1991, and also that there is a Witney Proposal 11 for the A40 junction at Downs Road which was envisaged to be a new junction with access to and from the A40, as shown on the Witney Inset Map.
The next document to which it is convenient to go is a covering letter from the Local Plan Inspector which accompanied his report. This is to be found in bundle 2 from page 134A and is dated May 2005. I will quote relevant passages from it now. At page 134B:
"I have limited my formal recommendations to matters arising directly from the duly-made objections. As far as possible, I have attempted to be positive and to make the plan more meaningful. There will also be places where the Council will need to redraft the wording of the supporting text to reflect the revisions made to the policies. In some instances I draw attention in my conclusions to inconsistencies which may arise within the plan as the result of a recommendation and I sometimes include a comment on matters which go beyond the scope of the duly-made objection but which I consider the Council might wish to consider further.
My report is written against the background of Government advice current as at mid-May 2005. The Inquiry took place at a time of radical change to the development plan system and, most significantly, Regulations under the Planning and Compulsory Purchase Act 2004 came into effect on [here there appears to be an error in the text of the letter which is, as far as I can see, not material to the issues in the present case but it reads '28th September May 2004']. This will not directly affect the remaining procedures for the adoption of this plan but will affect any future review. I have been particularly mindful of the fact that the Council will need to bring forward a new plan (Local Development Framework) under the 2004 Act in a relatively short timescale. I consider it important that this plan should proceed to adoption as quickly as possible, especially as new regulations on Strategic Environmental Assessment come into effect in July 2006. It is with this in mind that I have in several instances recommended that no modification be made to this plan but that the matter be considered in a Development Plan Document prepared under the new Act."
Under a heading still in the same letter "My Main Conclusions" which begins at page 134C of bundle 2, the Local Plan Inspector turned to the sub-heading "Transport" at page 134D and said this:
"The proposals in the plan for a Cogges Link Road (CLR) in Witney to provide relief for congested Bridge Street and the town centre was one of the most controversial elements and, as I indicate above, was the subject of special treatment at the Inquiry. It is a highly complex issue, particularly because the road scheme is being actively pursued by the County Council, as Highway Authority. The County Council had submitted a planning application for the scheme on the first day of this Inquiry and had commissioned extensive Environmental Impact Assessment work in support. I am not aware of the outcome of their deliberations on the application.
I ruled that the principle of the construction of the road was a matter for this Inquiry as well as a consideration of the alternatives put forward. There is no doubt that the CLR, crossing the valley of the River Windrush, would have major environmental impact. My conclusion is that the alternative of west facing slip roads at Shores Green in combination with the northern section of the West End Link warrants further investigation because of the lesser environmental impact and similar highway benefit. I have recommended that the CLR (and West End Link) should remain as safeguarded routes under policy T4 but should not be a specific plan proposal. The timescale involved suggests that the strategy could be reviewed through the LDF [ie Local Development Framework] process, including a consideration of the alternative 'non-CLR' option for development in East Witney rather than an North Curbridge. The least damaging alternative in environmental terms would have been a Newland Link with Shores Green improvements, even though it would not have provide [sic] the same traffic benefits. It is most unfortunate that the option has been closed through development. Otherwise, I recommend the deletion of most of the schemes listed under policy T4 because they do not meet the requirements for safeguarding under PPG12 guidance."
I will have to return to the covering letter and other documents in due course when I consider the second main issue in this case relating to North Curbridge, but in the context of the CLR issue the next document I need to turn to is the Local Plan Inspector's report after his inquiry.
Chapter 3 of that report addressed the heading "Housing and Transport Strategy" and starts in bundle 2 at page 175. At page 176 the Inspector summarised four issues before him. Issue (b) is relevant to the CLR and can be read in full for anyone who may need to see it. At page 180, the Inspector at paragraph 9.18 had a heading "East Witney" and said:
"I recognise that the Council faced some difficulty in preparing their case to deal with the objections submitted by the East Witney Land Consortium (EWLC) because the nature of the EWLC's alternative proposals changed quite radically between the initial deposit and the time of the Inquiry. However, there had been some material changes of circumstances in those three years, not least the lapsing of the planning permission for construction of the Cogges Link Road (CLR) and the requirement for an EIA for that scheme, the detailed implications of which I shall discuss later. The Council were correct to maintain at the Inquiry that they would wish me to consider only the duly-made objections, which did not raise an issue about the CLR . . . "
Then I read from paragraph 9.19 and following:
"Much of the detailed evidence submitted by EWLC relates to a completely different concept which could only be implemented should the plan proposals for the CLR not proceed. I will return to that but for the purposes of a comparative exercise on sustainability in accordance with paragraph 31 of PPG3 I consider that I must refer to the duly-made objection sites, appropriately reduced.
I consider that I can deal with this option relatively briefly. Firstly, in terms of general location and access to the town centre by foot or on cycle I am in no doubt that the Cogges area has very considerable advantages over North Curbridge, or indeed North Witney. It is the closest site in distance to the town centre, Henry Box secondary school and town employment areas (1-1.5 km) by way of the excellent footway and cyclepath across the Windrush valley past Cogges Manor. Indeed, the fact that this route is so much shorter than the road route through Newland and Bridge Street encourages the use of non-car modes entirely in line with PPG13 advice . . .
Whereas a development which is contiguous with the existing Cogges housing area would be able to make use of these routes I have very considerable doubts that the same would apply to a pocket of housing on the hill separated by the CLR, partly in cutting, even if there is a bridge over . . . "
I continue on to read from paragraph 9.25 and following:
. . . I conclude that the original (duly-made) proposals would be harmful to the landscape setting of Witney for these reasons.
My conclusion on the duly-made East Witney proposals (excluding CL1) is that they perform poorly against the sustainability criteria set out in paragraph 31 of PPG3 . . . "
Then the Inspector sets out his overall conclusion on issue (a) to which I may need to return.
On issue (b), which related specifically to the CLR as such, from 9.29 the Inspector said this:
"I heard much about the complex history of proposals for the Cogges Link Road (CLR) and the funding sought through developer contributions from the NE Witney Development Area . . .
It seems that the County Highway Authority may have been under the impression that because the schemes are named in the adopted County Structure Plan . . . paragraph 6.51, the principle is decided and that the only matter for consideration at this Inquiry was the detailed alignment. As I explained, that is not the case. Firstly, paragraph 6.51 is part of the Explanatory Memorandum which is explicitly stated not to form part of the plan. It is only the strategic routes listed in policy T12 which are in the plan. Secondly, it is clear from the EiP [Examination in Public] Panel report . . . paragraph 7.13, that they were regarded as local schemes and the principle was not considered. It is therefore the last sentence of the guidance in paragraph 5.21 of PPG12 which is most directly applicable, ie that 'local plan procedures or other statutory provisions will provide the means to examine both the options in relation to the transport requirement identified and any subsequent details of the proposal's implementation'. In this context, I would point out that none of the consultative procedures carried out by the Highway Authority are statutory. I recognise that my recommendations to the District Council in respect of the inclusion of road schemes in the local plan will not bind the Highway Authority but I would hope that due regard will be had to them. It also seems likely, subject to the timescale involved, that my conclusions may be a material consideration at any Compulsory Purchase Inquiry which may be required."
In 9.32:
" . . . Although the CPRE/Witney Society are objectors . . . their objection, with many others, is one of principle to the CLR because of the environmental impact of the crossing of the Windrush valley where it is claimed to be contrary to policy WIT3. They now favour SG together with NL on the basis that the 'de-trunking' of the A40 has opened up an option which was not available at the time of the previous local plan Inquiry . . .
I was assisted at the Joint Formal Hearing on the Transport by Mr Rob Barker, acting as Assistant Inspector. I asked him to carry out an appraisal of the highways technical evidence to the Inquiry . . . In paragraph 11.7 he concludes that the CLR is to be preferred in traffic flow terms to SG and WEL(2) but that there is little to choose between them. He also identifies a marginally greater traffic benefit of the CLR/WEL(2) combination of schemes over the SG/WEL(2) combination. In paragraph 10.7 he identifies the marginally lower relief provided by the SG/NL combination compared to CLR alone.
I accept the conclusions of my assistant on the traffic benefits of the alternative schemes. The main point is that the differences between the alternatives are marginal in overall traffic benefit terms although there is greater variation in terms of impact on individual parts of the road network, such as Bridge Street or the town centre core area. It falls to me to consider the environmental impact of the CLR as against SG, either with or without NL or WEL(2).
The results of the stage 2 analysis of six alternatives against broad environmental criteria are set out in [a document is then referred to] summarised in Annex 5 to [another document is referred to]. A summary table of the full TAG analysis of the final two alternatives is at Annex 6. I consider that Mr Hutchings (for EWLC) has exposed a number of weaknesses in the generalised scoring given. In particular, it must be the case that the environmental impact of the SG/NL combination would be significantly lower than either CLR alone or CLR/WEL(2) if only because of the removal of the need for a major new crossing of the Windrush."
I then move on to quote from paragraphs 9.40 and 9.41:
I also consider that the inclusion only of the SG/WEL(2) combination of schemes in the final TAG comparison with the CLR alone does not allow a proper balancing exercise because it is not comparing like with like. It masks the lesser environmental impact of SG compared to CLR in isolation. To put it another way, WEL(2) involves another crossing of the Windrush with consequent environmental impact on the valley and property. There may be a higher priority to construct it in combination with SG as opposed to CLR but it should be a common factor in any analysis. The potential impact of SG appears to be minimal only affecting the habitat of the dormouse which could be mitigated; it would be a relatively low cost scheme. In this regard, I also agree with EWLC that to take account of the monies already 'secured' for the CLR is a distortion of true cost. Given the right circumstances, and the agreement of all parties, funds could be switched. There could even be funds available to go towards the Downs Road improvements. There must be a very major question mark over the relative benefit attributed to early construction of the CLR, particularly in view of the interests of the landowner concerned and likelihood of CPO procedures.
Partly as a response to the evidence put to this Inquiry on behalf of the North Witney Consortium and their willingness to fund the majority of WEL(2) to serve their development proposals a further report to the County Council's Executive was made on 7th December 2004 which states a long term intention to construct the road but not to pursue any compulsory purchase procedures until the CLR has been constructed and the results monitored. It is suggested that the road might not be constructed, if at all, until after 2016 at least not if funded through the Local Transport Plan process."
I will then continue on to paragraphs 9.46 and following where the Inspector set out what he described as his "Conclusion on issue b", which of course specifically relates to the CLR:
"I recognise that a change of strategy now might result in some further delay whilst additional engineering studies are carried out into details of both the Shores Green and West End Link (N) schemes are undertaken. However, even should the CLR be pursued it is far from clear that construction might start as early as 2007/8. There is still time for a re-appraisal to be carried out.
I have not sought to review the mass of evidence in detail in this report but it is sufficient to convince me of the considerable environmental impact which would arise on the CLR as it cuts across the valley of the River Windrush. I am convinced that such factors of the severance of the Country Park; the introduction of additional noise reducing the recreational value of the park and the overall increase in CO² emissions due to the new road have been given insufficient weight in the TAG analysis. Moreover, the way in which the existing plan strategy is given weight introduces a bias in favour of that strategy.
In my opinion, the CLR option should not be pursued while there is a possibility that the less environmentally damaging option of the Shores Green improvements, possibly in eventual combination with the West End link, might be a feasible option. This may best be accomplished through the Local Development Framework process under the 2004 Act. In the meantime, in so far as it affects thisplan, I consider that the options should be kept open by the safeguarding of both the CLR and WEL(2) routes as in the deposit plan policy T4. However, in view of the uncertainties over timescale, especially of the WEL(2), I do not consider that these schemes should be included as specific proposals in the plan as in Witney Proposal 10. Indeed, the proposal can be deleted because it is largely superfluous, with the remaining relevant text transferred to chapter 4, paragraph 3.15."
The Inspector's formal recommendation on the CLR is to be found at page 191 of the same bundle, at paragraph 9.70 of the report, heading R9.4:
"Delete Witney Proposal 10 and transfer the text in paragraphs 4.6-10, in so far as it remains relevant, to chapter 4, to follow paragraph 3.15. Make no modification in respect of the 'Newland Link'.
R4.17 in relation to policy T4 is that the Cogges Link Road and West End Link (northern section) should remain as safeguarded routes in this plan."
For the sake of completeness I should mention that R4.17 can be found in the same bundle at page 151.
The local planning authority's officers prepared a report, in particular for the Development Control Committee in October 2005, and I will need to quote from that report so far as relevant to the CLR issue. That analysis begins at page 238 of bundle 2, under the heading "Witney Strategy, North Curbridge Development Area and Downs Road/A40 Junction". As will be clear from that and other documents, the two issues of the CLR and the North Curbridge Development Area, although analytically distinct, were often interlinked, at least in the minds of all involved in this process, including at the Local Plan Inquiry. I quote from that report now, 5.16 and following:
. . . it is clear that this alternative strategy is not deliverable in the short term at least, and is dependant upon County Council decisions. It would involve not only abandonment of the Cogges Link proposal, but the pursuance by the County and District Councils of an entirely different alternative highways and access strategy for the Witney area. This would require construction of a West End Link river crossing at a much earlier date than currently envisaged, construction of west facing slips at Shores Green, the release of parcels of land for development at North Witney and potentially some more limited land releases for housing at Cogges instead of at North Curbridge. The Inspector appears to favour this alternative strategy because of strong environmental objections he found to the Cogges Link as currently designed, the desire to identify more than just one strategic site for housing and because land at North and East Witney is overall closer to the town centre than North Curbridge . . . "
I go on at this stage to paragraph 5.21:
"A review of the Local Plan strategy for Witney is closely linked with the County Council's decisions on its proposed highway schemes. The County Highway Authority is not bound to act on the Local Plan Inspector's conclusions and may not wish to review/change its strategy as recommended by the Inspector. The Inspector's comments on the various road schemes are noted but the District Council is very much in the hands of the Highway Authority in this respect.
In response to the Inspector's conclusions about the Witney Transport Strategy, Oxfordshire County Council has issued the following statement . . . "
The whole of that statement is well-known to the parties and can and should be referred to as if it were incorporated into the text of this judgment, but I will not unduly lengthen this judgment now by quoting that in full. I will quote some brief passages which were specifically drawn to my attention by the parties. The first sentence reads:
"The County Council's view is that the Cogges Link Road (CLR) is the best highway solution to the very significant traffic and air quality problems in central Witney, particularly Bridge Street."
In the middle of that statement there is this paragraph:
"The Inspector understands . . . that the initial assessment of schemes related to the traffic benefits they delivered which is why, with reference to the figures shown above, the Shores Green improvement as a stand-alone scheme was not taken forward for further analysis in the Cogges Link EIA process. However, to address the issue the Inspector raises concerning the relative merits of the Shores Green proposal in terms of traffic effects and environmental impact, the County Council is reviewing the evidence collected as part of the CLR Environmental Impact Assessment Work. On the basis of this further work, the CLR scheme would go back to the County Council's Planning & Regulation Committee for consideration in early 2006 with additional information in response to the Inspector's views."
The next paragraph contains this sentence:
"The County Council would wish WODC [West Oxfordshire District Council] to continue to safeguard the land required for the CLR scheme in the Local Plan, as it is fully expected to have been completed by the end of the Plan period -- reflecting the urgent need for additional transport infrastructure to be secured."
Then the final two paragraphs of the statement:
"Cogges Link scheme is the priority for Witney, and it is therefore sensible to wait until the impacts of Cogges Link have been assessed before reviewing the need for and timing of WELs2. Therefore, again as per the Inspector's opinion (paragraph 9.48), the County Council would wish to see the West End Link Stage 2 scheme safeguarded.
Accordingly, the County Council does not see the need to reassess the transport strategy for Witney at this stage. The proposed way forward as a matter of policy remains the implementation of the CLR together with a package of appropriate traffic management and other complementary measures. The need for further infrastructure (for example West End Link Stage 2) can then be reviewed in the light of assessment of the actual impacts of CLR and other measures."
After setting out their own views on a number of matters, I can then go to paragraph 5.31 of the officers' report which reads:
"Having taken into account the Inspector's analysis, your officers are still of the view, for the reasons given, that North Witney is not materially different to North Curbridge in terms of potential scale. North Witney does not possess fundamentally better sustainability credentials."
I will have to return to that and other aspects of their report when considering the second main issue in this case.
The proposed modifications by the local planning authority in relation to the CLR can be found in bundle 3 starting at page 337. PM4.6 related to policy T4 "Major highway schemes", and policy T4 is described in the proposed modification to read as follows and the proposals map modified accordingly:
"Land will be safeguarded for the following highway schemes, as shown on the Proposals Map and Inset Maps:
• Witney -- Cogges Link . . .
• Witney -- West End Link (northern section)."
In the column headed "Reason", in other words reason for the proposed modification, the document states:
"The schemes not yet built continue to be safeguarded while the current review of the Local Transport Plan is taking place.
NB Non-acceptance of Inspector's recommendation (see Part B)."
Also relevant are PM4.7 and PM4.8. So far as PM4.7 is concerned, I should quote from the end. After certain words in the text are shown to be deleted by way of proposed modification then this sentence is proposed:
"Oxfordshire County Council has requested that land required for the schemes listed in policy T4 continues to be safeguarded in this Plan. Review of the need for these schemes is taking place through the Local Transport Plan."
The "Reason" column says:
"See reason associated with R4.6.
NB Non-acceptance of Inspector's recommendation (see Part B)."
Finally in this document, PN4.8 contained proposed modification to paragraph 3.15 to read:
"New highway schemes in the Witney area remain to be built from proposals in the adopted 1997 Local Plan (see the Witney Chapter for . . . details of the A40 Downs Road junction)."
Then in relation to the CLR specifically there was this text proposed:
"Cogges Link Road -- this road will provide a second river crossing and enable traffic to be removed from the central area, especially Bridge Street. Detailed planning permission for the road was granted by Oxfordshire County Council in January 1997. An application to renew consent was submitted at the beginning of 2002."
Then the reference in the draft which I read earlier about construction awaiting the completion of legal agreements is shown now to be deleted. There is also reference to the West End Link Road and some text proposed for that.
The next event to note is that there were representations made to these proposed modifications, including by the Consortium. I can conveniently take those by referring to the officers' recommendations on those representations. They are to be found in bundle 3 at pages 485 and 486. In the column of that table headed "Summary of Representations on Transport and Movement" and with a heading "Policy T4 -- Safeguarding of Highway Schemes (PM4.6)", it says this:
"OCC supports the continued safeguarding of the schemes listed in T4. The County does not wish its future decisions to be fettered by removal of schemes from the Local Plan (decisions subsequently made in February 2006) . . . .
The CPRE (Witney District) objects to non-acceptance of the Inspector's recommendation, in particular that the Cogges Link is being pursued but not the Shores Green improved junction."
In the officer's comments and recommendations on this:
"OCC is undertaking considerable further work in relation to the Cogges Link to address the issues raised by the Local Plan Inspector, including updating the Witney traffic model and further Environmental Impact Assessment work. The outcome will help inform the future transport programme but is unlikely to be known much before the end of 2006. Consideration by OCC of the outstanding planning application for the Cogges Link awaits that outcome . . . ."
Returning to the left-hand column with the heading "Policy T4 supporting text (Cogges Link) (PM4.8)", the summary of the representations includes this:
"The Witney Society objects to the text on the Cogges Link and seeks a statement of the route as safeguarded pending an appraisal of other options.
The East Witney Consortium seeks the following in respect of the Cogges Link:
• The first sentence to be reworded to "if implemented, this road would provide a second river crossing . . .
• A new paragraph to be inserted to read: 'However, the Cogges Link Road and other alternative road schemes, including the A40 Shores Green upgrade, will be reassessed in parallel with the future development strategy for Witney, as part of the Core Strategy DPD [Development Plan Document] under the 2004 Act.
It is important to note what the officer's comments and recommendations were on those representations:
"It is OCC and not WODC that intends to build the Cogges Link as first priority. The Local Plan simply reflects this decision. The timing and content of the future Core Strategy DPD is a matter for the Council's Local Development Scheme and circumstances prevailing at the time of preparation. It will be informed by OCC future decision on the Witney transport strategy. Core Strategies do not contain site specific proposals. It is recommended that a factual amendment only be made to the supporting text, ie, the last sentence of the text relating to the Cogges Link be deleted and replaced by;
'An application to renew consent was subsequently submitted. Ongoing work in relation to the associated Environmental Impact Assessment and Witney Traffic Model will inform the County Council decision on the planning application.'"
The next document I should turn to is the local planning authority's statement of its decision and reasons in relation to those representations on its proposed modifications, which was made in May 2006 and, in relation to policy T4, can be found in bundle 3 at pages 535 and 536. In substance, those are in the same terms as the officer's recommendations which I have set out more fully, and the text at pages 535 and 536 should be treated as being incorporated for the reference of the parties into this judgment, but I will not again unduly lengthen the judgment by setting it out verbatim here.
The adopted version of the plan in June 2006 then contained policy T4. That is to be found at page 566 of bundle 3. Policy T4 in a box is headed "Major highway schemes" and reads:
"Land will be safeguarded for the following highway schemes as shown on the Proposals Map and Inset Maps:
• Witney -- Cogges Link
• Witney -- West End Link (northern section)
• Witney -- A40 Downs Road Junction . . . "
The others need not be adverted to here for the purpose of this case.
In the text, under the heading "Witney" at paragraph 4.28 it reads:
"New highway schemes in the Witney area remain to be built from proposals in the adopted 1997 Local Plan . . .
• Cogges Link Road -- this road will provide a second river crossing and enable traffic to be removed from central area, especially Bridge Street. Detailed planning permission for the road was granted by Oxfordshire County Council in January 1997. An application to renew consent was subsequently submitted. Ongoing work in relation to the associated Environmental Impact Assessment and Witney Traffic Model will inform the County Council decision on the planning application."
It is right to note that in the next bullet point, under the heading "West End Link Road", after words which are omitted, that bullet point ends with this phrase:
"Although this Plan continues to safeguard land for the river crossing, the need for the northern section of the West End Link will be kept under review in the light of monitoring of the effect of the Cogges Link and associated measures upon the town's traffic."
Having set out at some length, but necessarily so, the process which led to the adoption of that policy in relation to the CLR and the adopted Plan, I will now seek to summarise the essential criticisms made by Mr Lowe on the CLR issue. They can be summarised, I hope fairly, by quoting three paragraphs from the claimants' skeleton argument:
The Plan as adopted safeguards the land required for the CLR via policy T4 . . . However, the text of the plan continues to support the provision of the road and assumes that it will proceed . . . There is no reference to the LPI's conclusions on the road or to any review of local highway schemes whether in the Core Strategy or at all.
In other words, the Council have 'cherry picked' the recommendation of the LPI to safeguard the route for the CLR but have taken no action on the substantial qualifications that are integral to that recommendation and are the foundation of the reasoning of the LPI in support of it. There is no commitment whatsoever to the re-assessment of highway strategy for the town . . .
It follows that the CLR is now included as a road scheme within the Plan the route for which is safeguarded in the policies of the Plan and the rationale for which is supported in the text of the Plan. The reason and underlying purpose for that safeguarding as recommended by the LPI have never been addressed by the defendant which stubbornly continues to give unqualified support to the CLR without addressing the reasons for the contrary view given by the LPI. To the extent that they leave these matters to OCC to address in its capacity as highway authority they abdicate the responsibility which is theirs to assess the desirability of the proposal in line with the advice of the LPI. Further neither they nor OCC have given any reasons for rejecting the advice that they should prefer other transport solutions because of the environmental harm likely to be caused by the CLR. By this means the role of the Local Plan Inquiry in the assessment of such proposals as advised by PPG12 para 5.21 has been frustrated . . . "
I should make reference in terms to PPG12 on Development Plans (1999) on which, as I have quoted, reliance was placed on the part of the claimants. That is to be found in bundle 5 at page 934:
Local plans . . . should elaborate the detail of transport proposals where a particular preferred proposal has been identified at the regional or strategic level. They should also include proposals of a non-strategic nature as they relate to the development patterns proposed in the plan. Proposals should be limited to those on which work will commence during the lifetime of the plan, especially where land is required to be safeguarded for the proposals. Where the options for meeting particular transport requirements have already been evaluated at the regional or strategic level, consideration in the local plan process should normally be limited to detailed land use issues such as alignment. Any objections to the proposals will be heard at the public local inquiry, although trunk road schemes will continue to be considered under the 1980 Highways Act. If detailed consideration of a scheme at a public inquiry were to reveal that it would cause unacceptable damage to the environment, consideration would be given to its deletion or relocation, together with associated changes in development or alternative solutions. In the case of proposals that have not been examined at the regional or strategic level, local plan procedures or other statutory provisions will provide the means to examine both the options in relation to the transport requirement identified and any subsequent details of the proposal's implementation."
Reference was also made at the hearing before me to paragraph 5.22 of PPG12. Again, it is well known to the parties and can and should be referred to so far as necessary as if it were part of this judgment, but I will not unduly lengthen the judgment by quoting it in full here.
In my judgment, the criticisms made on behalf of the claimants in relation to the CLR issue are not well-founded in law and I reject them. I bear in mind the legal principles which are common ground and which I have sought to summarise earlier. In particular, I remind myself that the Local Plan Inspector's recommendations are not binding on the local planning authority, provided they consider them fairly, in accordance with the legal principles which I have outlined, and they give adequate reasons for not accepting a recommendation by the Local Plan Inspector. I also remind myself that the court should not construe their reasons as if they were contained in a statute, and that those who write such documents as I have seen in this case on behalf of the local planning authority are not sitting an examination paper.
In my judgment, the evidence before the court demonstrates that the defendant accepted the main recommendation by the Local Plan Inspector which was to downgrade the inclusion of the CLR from a proposal in the plan to merely safeguarding the route for it. They were certainly not obliged to accept more. What they did not accept was adequately explained by them, especially bearing in mind that the reader to whom those reasons were addressed can be taken to know the background and context, as the Consortium plainly did. In saying that, I have in mind the words of Lord Brown in South Buckinghamshire which I quoted earlier.
The defendant also explained adequately, in my judgment, its reasons for not accepting the representations that were made to its proposed modifications and for not going as far as those representations would have wished. Nor, in my judgment, is there merit in the complaint that the defendant has abdicated its responsibility to another public authority, namely Oxfordshire County Council. On the evidence before the court, it is clear to me that all that the defendant did was to take into account the views of the Highway Authority which it was entitled to do. There is no justification for the suggestion that either Oxfordshire County Council or the defendant have pre-determined the outcome of an environmental assessment of the merits of the CLR in light of the Local Plan Inspector's comments.
The essential complaint made by the claimants is that the local planning authority should have chosen to conduct a review of the CLR in a particular form, namely through the Local Development Framework. I have noted, in quoting from relevant documents in the course of my judgment, that, on a fair reading of what the Inspector was saying, it was not the case that that was necessarily the only means that even the Inspector was envisaging as a way of reviewing the CLR. But in any event, it is clear that the local planning authority, having considered the Inspector's recommendations and advice to them, differed from the Inspector in the sense that they did not wish to conduct a review through the particular form of the Local Development Framework. They had in mind other means to do so. They were not bound to accept that that was the only means by which a review might take place and, in my judgment, explained adequately why they did not intend to do so.
In this context there was, in my judgment no failure by the defendants to have due regard to PPG12, in particular paragraph 5.21 which I have quoted earlier. The defendant was well aware, as the Local Plan Inspector had ruled, that the principle of the CLR was for consideration at the Local Plan Inquiry and as part of the Local Plan process. Indeed, they accepted the main recommendation made by the Local Plan Inspector in relation to the CLR, namely that the proposal to see it built should be downgraded so as only to safeguard its route. As I have noted earlier, the claimants make no complaint about that acceptance by the defendant, although in their representations under the proposed modifications, as I have noted, they would have wished the local planning authority to go further. In my judgment, the defendant was not obliged by law to do so.
I should also mention that Mr Lowe drew my attention at the hearing to certain provisions of the Transport Act 2000, sections 108 to 112, which govern the preparation of Local Transport Plans by local transport authorities. He suggested that the process for preparing such plans does not confer the same procedural rights on objectors as are conferred on the Local Plan process; in particular the opportunity to appear at a public inquiry. Even if that is so, and that appears to me to be a matter for Parliament, in my judgment it does not affect the conclusions to which I have come in relation to the lawfulness of the defendant's approach to the Local Plan Inspector's report, his recommendations and his advice, and its subsequent actions in coming to adopt the plan as it did.
The North Curbridge Issue
Again, I will first set out the relevant passages from documents relating to the North Curbridge issue. The starting point is the revised Deposit Draft Plan Policy H1 which is to be found in bundle 2 at page 75. Policy H1, as it stood at that stage, envisaged phasing of development for housing in particular. Prior to 1st April various sites were listed and, more pertinently:
"Development to commence after 1st April 2006 unless monitoring of housing land supply, including the need to provide affordable housing, justifies an earlier release."
Then the first area listed is "North Curbridge Development Area (Witney Proposal 6)". Witney Proposal 6 is to be found in the same document at page 95 of bundle 2 which has the heading "North Curbridge Development Area":
"An area for comprehensive mixed use development is allocated to the west of Witney as defined on the Witney Inset Map. Proposals will be permitted within this area provided that they:
are part of a comprehensive scheme for the whole site, incorporating the range of land uses and associated infrastructure needed for a new community;
demonstrate to the satisfaction of the local planning authority that the development will result in a positive addition to Witney;
provide for residential development . . . to achieve no more than 800 dwellings within the plan period . . . "
The remaining items in that policy proposal I need not lengthen this judgment by setting out here, but they can and should be treated as being incorporated should anyone need to look at them further.
Next I will turn to the covering letter by the Local Plan Inspector which accompanied his report. That is in bundle 2 starting at page 134C for this purpose. Under a heading "The overall level of the plan provision for housing":
"I drew attention at the Inquiry to the fact that the structure plan review would have the effect of re-phasing the housing requirement for West Oxfordshire to 2016. This is especially significant in Witney where there is only a very small increase in the anticipated annual provision. The structure plan review does not seek to compensate for the under-provision in the 1996-2001 period. This leads me to the conclusion that the Local Plan identifies more than adequate land and verges on over-provision. However, it does meet the requirement in the 'Keith Hill' parliamentary statement of July 2003 for the plan to identify a 10 year supply from the date of adoption . . . "
Then in a heading at page 134D "Witney housing allocations":
"A major part of the Inquiry was taken up by a consideration of the choice of North Curbridge as a housing proposal for the expansion of Witney in the face of objections furthering alternative allocations to the north and east of the town. In the event my conclusion is that no large new green field allocation need be made for development prior to 2011 because of the revised structure plan requirement mentioned above. I also consider that the alternatives have some merit, although I rule out the duly-made East Witney proposals with the Cogges Link Road in place. I have not deleted the North Curbridge allocation but have 'de-phased' it to post 2011. I also consider that the whole strategy should be re-evaluated in the LDF. Also in Witney I favour specific allocation at the Buttercross Works and indicate that the Stanton Harcourt Road site might be considered should the CLR be built."
That is all I need for this purpose from the covering letter.
I turn next to the Local Plan Inspector's report. Chapter 5 dealt with housing. This starts in bundle 2 at page 157. He noted, amongst the six issues he outlined at the beginning, that issue (b) was the overall level of housing provision in the District and the scale of development in Witney. I can go next to page 169 where again, in the middle of the page, he sets out some four specific issues for him. Issue (c) reads:
"Whether in the light of these considerations, the short time left before 1st April 2006, and the need to consider options for development after 2011 (towards 2016), an alternative approach to phasing might be appropriate."
I turn next to page 187 on issue (c) and need to quote extensively from paragraph 9.49 and following:
"I have analysed the relative merits of the North Curbridge site against the competing claims of North and East Witney under issue a. One of the factors which comes out of the highways analysis is that North Curbridge, unlike the other two schemes, does not have any implications for traffic flows on town centre roads. However, the corollary to that is that the development would do nothing to assist in providing relief to Bridge Street or Staple Hall. It would be a highly self-contained development somewhat separate from the rest of the town despite the potential for linking in to the commercially successful bus routes from Carterton to Oxford. It is primarily because of this relative isolation that entirely new school(s), shops and community facilities would be required. Both of the other options would make some use of existing facilities and thus would more closely match the sequential approach of paragraph 31 in PPG3."
My attention was drawn by Mr Lowe in particular to the use of the phrase "flexibility" in paragraph 9.51, so I will read the material parts of that:
" . . . To provide the greatest flexibility in terms of the plan strategy and to deliver the Shores Green improvements in the short-term and at minimum cost to the public purse it would be necessary to consider the revised East Witney proposals in addition. As I have already indicated, I have some difficulty in view of the Council's stance on the changes made to the EWLC representations over time. The Council are within their rights to refuse to consider the revised option making use of the CLR land to keep development at a lower level on Cogges Hill . . .
However, I conclude that the alternative options for housing development in Witney represent a viable alternative strategy to that presented in the plan. The weight of evidence presented is sufficient to convince me that the North Curbridge option should be reconsidered in parallel with a re-assessment of the alternative road schemes. All of this is best accomplished through the preparation of a core strategy DPD under the 2004 Act. This must be an absolute priority and involve all of the stakeholders involved at this Inquiry. For their part, the County Highway Authority must recognise that the justification for road schemes, or indeed the location of park and ride sites, is integrally linked with land use policy. It might be expected that these will be considered through the LDF process.
I recognise that this conclusion will have major implications for this plan. However, as I have also concluded that no major new housing site need be brought forward for development before 2011 or thereabouts, neither the North or East Witney sites need to be allocated in this plan. Indeed, they cannot, for all of the reasons I have given above.
I also recognise that the allocation of 800 dwellings in North Curbridge, as Witney Proposal 6, enables the plan to meet the requirement in the Keith Hill statement of July 2003 to identify a 10 year supply of land at the likely date of adoption. Should the proposal be deleted in its entirety the plan would fail to meet this ministerial objective. Clearly, one of its purposes is to minimise any possibility of an interruption in housing supply. Although I am confident that the Council will be able to progress a review of the core strategy by adoption of a DPD before 2007/8 when decisions on development post-2011 will have to be taken, there must remain some doubt about the deliverability of the various road schemes to serve the alternatives. It is right that North Curbridge is affected least by these difficulties even though its 'all or nothing' nature is a major drawback in terms of the PMM [Plan, Monitor and Manage] approach. On balance, I consider it better to keep all options open by recommending that North Curbridge should remain an allocation in this plan but only as a kind of reserve site phased under a modified policy H1 for development after 2011. It will need to be made clear that this is subject to review. It follows that none of the detail in Witney Proposal 6 is needed. I recommend a simple policy in its place. However, I recognise that detailed representations have been made on the existing policy and I consider these . . . below, effectively on a 'without prejudice' basis."
Again, my attention was drawn to paragraph 9.55, particularly, as I understand it, because there is a reference there for the need for there to be some "flexibility". Next I would go to paragraph 9.61:
"I fully acknowledge the benefits which would accrue from the Downs Road junction but to identify the North Curbridge site as a strategic one would run entirely counter to my recommendation to defer development and to review the allocation in a core strategy DPD. There should not be any commitment to eventual development in this plan. It must remain an option to be considered, no more no less. If there is not to be developer funding for the junction, at least in the short term, and it is seen as a priority, then a case for it will need to be made for funding through the Local Transport Plan process."
The formal recommendations on this aspect of the case can be found starting at page 191 of the bundle. Paragraph 9.67 sets out recommendation R9.1 which reads:
"Delete Witney Proposal 6 and replace it with a new policy as follows:
An area for comprehensive mixed use development, including no more than 800 dwellings, is allocated to the west of Witney as defined on the Witney Inset Map. This area will be held in reserve and is not expected to be required for development prior to 2011 in accordance with phasing policy H1."
Then recommendation R9.2:
"Modify all references to the North Curbridge allocation in the plan to take account of R9.1. In chapter 9 modify paragraphs 2.5 to 2.10 to explain that although a development at North Curbridge remains a possibility after 2011 this will not be permitted pending a review of the plan strategy. Also amalgamate much of the detail from deleted Witney Proposal 6 with the explanatory text paragraphs 2.31-39 subject to recommendations R9.15&16 . . . "
At pages 196 and 197 there were both text and recommendations in relation to what the Inspector had earlier described as his "without prejudice" approach to recommendations R9.1 and 9.2. Again, in order not to unduly lengthen this judgment I will not set those out. They are familiar to the parties and can and should be treated as if incorporated into this judgment if they need to be referred to. Indeed, for the sake of completeness I should add that the entirety of the Local Plan Inspector's report and other documents may need to be looked at by anyone should they need to consider this matter further. I have sought to try to outline as briefly as possible, and fairly I hope, most of the relevant documentation.
The next document I need to go to is the officers' report to the local planning authority in October 2005. It is in bundle 2 at pages 242 and 243. At paragraph 5.31:
"Having taken into account the Inspector's analysis, your officers are still of the view, for the reasons given, that North Witney is not materially different to North Curbridge in terms of potential scale. North Witney does not possess fundamentally better sustainability credentials.
North Curbridge -- Although this area should be allocated as a reserve site in the Local Plan, your officers are unable to fully endorse the Inspector's recommendations in R9.1 and R9.2. Although present indications show that new housing from this site is unlikely to be needed until the end of the Plan period at the earliest, the Council should retain flexibility in the Plan and not incorporate an absolute embargo on any development prior to 2011. However, land should only be released in whole or in part for development either before 2011 or before a review of the plan strategy if a clear need can be demonstrated (see recommended policy H1). Additional growth at Witney will be needed in the medium to longer term. What is not known at present is how much housing and over what timescale. The outcome of the SE Plan and the Government's deliberations on overall housing land supply are awaited."
At 5.35:
"Furthermore the overall strategy for Witney will be subject to review through the future Local Development Framework (LDF) to take proposals forward beyond 2011. The Council's current 3 year Local Development Scheme (approved last April) contains no provision for a Development Plan Document to be prepared which would add housing sites to the identified supply. The short-term intention is to adopt the Local Plan and issue supplementary planning guidance before embarking upon new plan preparation. The future LDF is referred to in the redrafted para 2.31 of the Plan (see Annex D)."
Next I need to go to the local planning authority's proposed modifications on policy H1. They can be found in bundle 3 at page 343. The relevant proposed modification was PM5.3 and is described in the middle of the table in this way:
"Section 3 to be titled PLANNING, MONITORING AND MANAGING HOUSING PROVISION and paragraphs 3.1-3.5, policy H1 and paragraphs 4.1-4.3 to be replaced by the new text and policy H1 as set out in the attached Annex B . . . ."
That new proposed policy H1 can be found at page 368 in the same bundle, and one of the significant features of that page is to note the deletion which is shown there through striking out lines of the proposal in relation to North Curbridge.
Next I need to go to page 370 in the bundle, and in the text the proposed paragraph 3.1 and following:
"This plan makes sufficient provision to meet the Structure Plan housing targets for West Oxfordshire . . . Sites will be brought forward to ensure the requisite number of houses are built through the provisions of policy H1 and its Plan, Monitor and Manage approach. Sufficient sites are identified on the Proposals Map to ensure at least a five year supply without recourse to windfalls as required by PPG3. The addition of windfall sites and the reserve site of North Curbridge will ensure a longer term supply of new housing."
Then going to paragraph 3.3 of the proposed text:
"Proposals for Witney are set out in the separate chapter for the town. Provision for additional dwellings comprises . . . "
Then I need not go to the separate bullet points which are there set out but note them. Then paragraph 3.4 on page 371 of the bundle:
"In addition to the above provision in Witney, land to the west of the town (North Curbridge Development Area) has been identified as a reserve site to meet the longer term needs of the community and future housing requirements. This identification of a supply of new housing beyond the plan period meets Government guidance. The provisions of policy H1 will inform timing of land release in this area. The specific land-use mix, including the amount of employment land required, will influence the total number of dwellings to be built on this site."
Next I go to page 379 of the bundle where PM9.1 is set out, and it is important to see that in the reason given for this proposed modification this is described in that column of the table as being "Partial non-acceptance of Inspector's recommendation". In the proposed paragraph 2.5 of the text it is said:
"Taking into account
• upper levels of the identified urban capacity range may not be deliverable
• limited supply of older employment sites that could be redeveloped for housing
• lack of small sites on the fringes of the town that are free of planning constraints
• need to secure major improvements to Witney's infrastructure
• need to identify longer term supply of residential building land beyond current plan period to meet Government objectives.
The Council concluded that the most appropriate way forward is to identify a comprehensive mixed use development area as a reserve site which would provide not only for housing but also for [and then words are shown to be deleted in several parts of this text] employment, education and other supporting local facilities and to improve transport infrastructure."
There is specific reference to the North Curbridge site, and in particular this sentence:
"This reserve site is the most effective overall planning solution to help meet Witney's needs in the longer term. However, residential development at North Curbridge will only be permitted prior to 2011 or a review of the plan strategy if there is demonstrated to be an overriding need for earlier release."
Finally, in this document I should go to page 415 in the bundle where there is reference to recommendation R9.1. The Inspector's recommendation summarised in the middle of that table and then the reason is set out for what is there described as "partial non-acceptance" of the Inspector's recommendation:
"The Council accepts the principal recommendation that North Curbridge is allocated as a reserve site but with the following amendments:
• A modified Witney Proposal 6 is to be retained as this provides the framework for future decisions.
• The Council wishes to retain the flexibility of land release before 2011 if need is demonstrated. Modified policy H1 will control timing of land releases, ie, the allocation at North Curbridge will not be granted permission for residential development until monitoring demonstrates an overriding need for its release either prior to 2011 or prior to a review of the plan strategy. Given the long lead in times on major development sites that is more flexible approach which recognises the practical issues of ensuring delivery of necessary housing and other development together with supporting infrastructure.
• The allocation will meet more than future housing needs of Witney. Provision for additional employment land forms part of the proposal. The North Curbridge proposal responds more appropriately to Government guidance both in terms of seeking to achieve a more sustainable mixed use development which provides for future employment growth and in demonstrating a longer term housing land supply which can be drawn upon when needed to provide necessary new homes including affordable housing.
• It is not appropriate to limit the housing capacity through a precise maximum housing figure at this stage. Housing capacity will be dependant upon the infrastructure, land use mix, density and design considerations. The Plan will refer to a level of housing 'in the order of 800 dwellings'."
On recommendation R9.2, again the Inspector's recommendation is summarised in the middle of the table and the local planning authority's reason for only partially accepting that recommendation is said, by cross-reference, to be the same as the reasoning which I have already quoted in relation to recommendation R9.1.
There were then representations made to the proposed modifications and I will go to the document which sets out the officers' comments on the representations to those proposed modifications. This can be found at page 489 of the same bundle. In the summary of representations in the middle of that table, it was noted that:
"The East Witney Consortium seeks a commitment that North Curbridge will be reviewed through the preparation of a new DPD. It should be deleted from the second phase and held in reserve for development after 2011. Reference is sought in the Plan to the new pro-rata Structure Plan housing figures up to 2011."
In the officer's comments and recommendations column against that:
"It is agreed that house completions at North Curbridge are unlikely to be needed before 2011 to meet Structure Plan targets if present sites in Witney with planning permission are built out as currently envisaged. However an element of flexibility must be retained to meet the Government's housing delivery agenda. The grant of any planning permission before 2011 does not automatically translate into house completions before 2011. There is a long lead-in time for major development areas.
Comments made about timing and content of the future LDF are not relevant to the Local Plan . . . .
In response to the issues raised it is recommended that the second part of policy H1 be reformatted as follows:
• The sentence referring to the allocation at North Curbridge be placed at the end of the policy (ie 'The allocation at North Curbridge will not be granted permission until monitoring demonstrates an overriding need for its release either prior to 2011 or prior to a review of the plan strategy'.);
• North Curbridge Development Area be deleted from the list of sites in the second phase."
I next go to the statement by the local planning authority of its decisions and reasons in relation to the representations on the proposed modifications. That can be found in the same bundle starting at page 538. It is in very similar terms, as the parties to this hearing well know, to the text that I have already quoted from the officer's comments, and reference can be made to it by anyone who needs to look at pages 538 and 539 in full.
I should refer to page 540 where there is this, after setting out the proposed modified version of policy H1 in the Council's response column:
"These modifications are considered to meet the Inspector's recommendations regarding phasing whilst retaining a degree of flexibility in the event that committed sites fail to deliver new housing at the rates currently forecast. Although this appears unlikely to occur on the basis of current information, the Government is keen to see 'fall back options' in its emphasis upon housing delivery. Preparation of new development plans under the LDF system is not proving as 'quick and simple' as the Government originally envisaged. The timing and content of the future LDF programme is a matter to be considered outside of the Local Plan.
Policy H1 and the modified text for North Curbridge (see below) make the Council's position clear."
Then at page 541 I should read from the Council's response on Witney Proposal 6:
"Witney Proposal 6 is considered useful to retain as it provides a very broad guide for all parties who have a stake in delivering development, services and facilities in Witney . . . "
Then at page 542, finally, in this context, I should read this in the summary of representations it was noted that:
"Agents for the East Witney Land Consortium also seek acceptance of the Inspector's recommendations with deletion of Witney Proposal 6 as it is considered there is no requirement for a detailed policy framework for the development area at this time and it should be subject to early review as part of the LDF process."
The Council's response in material terms is as follows:
"After reviewing the options available for development on the fringe of Witney, the Council concluded that land to the west of Deer Park Road is the most appropriate direction of growth if Witney is to physically expand in order to continue to meet the bulk of future housing requirements in the District.
As the Local Plan progressed through its stages, it became clear from monitoring of housing land supply that only a small brackets (if any) contribution to that supply was likely to be needed from a new urban extension to ensure Structure Plan housing targets for 2011 would be met. However, longer term planning necessitates identification of land reserves beyond the current Local Plan period in order to minimise the period of interruptions in housing supply and demonstrate a 10 year supply of housing land from adoption of the Plan. The needs of Witney beyond 2011 will be further considered in the future Local Development Framework . . . "
The final document in this context I need to go to is the adopted plan and policy H1, as it eventually became, can be found at page 573 of the same bundle. It is clear, under the heading "Phasing" that so far as material it says:
"The allocation at North Curbridge will not be granted permission until monitoring demonstrates an overriding need for its release either prior to 2011 or prior to a review of the plan strategy."
I should also make reference to page 592 and to page 595, although, again, they are familiar to the parties in this case and I will not lengthen this judgment by quoting from them. They can be treated as incorporated into this judgment.
I turn next to the criticisms made by the claimants in relation to the second main issue in this case. This can, I hope, fairly be summarised by reference to paragraph 54 of the claimants' skeleton argument which I read from:
"In summary the Council has failed to grapple with the conclusions made by the LPI with respect to the CLR. By safeguarding the route without reference to any review of the strategy prior to the construction of the road and by treating the construction of the road within the life of the Plan as a commitment it has denied itself the ability to review the housing strategy for the period post 2011 as advised by the LPI. These key recommendations of the LPI were based on his conclusion as to the environmental harm in pursuing the CLR. His strategy of reviewing both the CLR and the housing strategy for Witney at an early stage before a binding commitment is made to either has been wholly undermined without any consideration by the Council of the key reason for making his recommendations. These matters are set out as the second ground of claim . . . "
In my judgment, the criticisms made of this aspect of the plan too are not well-founded in law. In so far as this set of complaints is based on arguments relating to the CLR, I reject them for reasons I have already given. In so far as these complaints are distinct and relate specifically to the way in which the local planning authority dealt with the Local Plan Inspector's recommendations in relation to the North Curbridge site, I also reject them.
In essence, the defendant accepted in part the main recommendation by the Local Plan Inspector that the North Curbridge site should not be developed for housing before 2011. It did not accept it in full because it wished to retain flexibility in case that site should become necessary, in particular to meet the Government's objectives on housing. That reasoning is clear from the documents I have quoted from, and certainly adequate as a matter of law. It does not need much elaboration. In the end it comes down to a difference of view as to the best policy to adopt, something which is quintessentially for the local planning authority, which is not bound by the Local Plan Inspector, and is certainly not a matter for the court. Nor can I see any other legal error or unfairness in the way in which the local planning authority handled this issue in arriving at its adopted plan.
I should also mention a subsidiary submission that was made by Mr Lowe and which was the main subject of his application for permission to amend the grounds which I granted, as I have said, without objection at the hearing. I can summarise this by reference to the claimants' skeleton argument at paragraphs 50 and 51:
Further it is now apparent that the Council may have modified (or may consider that it has modified) the Plan so that the site may be released not because the need for housing under policy H1 requires it but because of a justification relating to either or both the need for additional employment land or infrastructure prior to 2011 . . .
If true this would constitute a very significant modification to the policy. Now the site can be released prior to 2011 and prior to a review of the housing strategy for Witney if any one of a new collection of needs other than housing are found to require it."
Having heard argument at the hearing of this case, in particular from Mr Steel, it is not clear to me that this is in fact the true meaning of the adopted Plan or that the local planning authority would contend that it is if faced with a particular application for planning permission. But in any event, it does not appear to me to be something which goes to the legality of the adoption of the Plan, or part of it, which is what the focus of section 287 of the Town and Country Planning Act 1990 is about. It seems to me that if it has to be decided at all, this is a point which would be better dealt with in the context of a particular application with concrete facts.
Standing
The issue of standing was raised by the parties only in relation to the CLR issue. I remind myself of the terms of section 287 and the reference there to "person aggrieved". I can deal with this issue shortly in view of my decision on the legal merits of this challenge. If the grounds of challenge had been well-founded in relation to the CLR, I would have been reluctant to shut out the claimants on the ground that they lacked standing. I saw some force in Mr Lowe's arguments, which were essentially twofold. First, that the CLR would cross land owned by the Consortium, and secondly, that the claimants did make a valid objection to the proposed modifications to the local plan even if, as is common ground, they had not made duly-made objections at earlier stages.
I heard interesting arguments about the meaning of the phrase "person aggrieved" and its application to a context such as the present where a claimant had at one stage supported a proposal and had not made any duly-made objection in the process leading up to the Local Plan Inquiry. However, it is neither necessary nor appropriate in this case to give a definitive ruling on that question in view of the conclusions I have reached on substance of the challenge.
Conclusion
For the reasons I have given, this application is refused.
MISS BICARREQUI: My Lord, I hope you received a letter explaining my presence here today.
RABINDER SINGH QC: Yes. Thank you.
MISS BICARREQUI: You will have seen from that letter that it was suggested that seven days be given for the successful party to make representations. In the circumstances of your judgment, I would suggest perhaps that the order could be made that the claimant is to pay the defendant's costs. The defendant has a preference, my Lord, for those costs to be assessed summarily. A costs schedule was served yesterday afternoon.
RABINDER SINGH QC: Yes, I have seen that. Do you want to say anything else before I hear Mr Lowe?
MISS BICARREQUI: No, my Lord.
MR LOWE: My Lord, I cannot resist the principle of the application, given my Lord's judgment. All I would ask is that costs be assessed in the usual way.
RABINDER SINGH QC: Yes. I have to say -- and I will hear anything further you want to say to me -- normally in a case which is longer than a day, detailed assessment would be ordered if the parties cannot agree. I have seen the schedule of costs. Having seen that schedule, I am afraid it merely confirms my view that the normal course should be followed, unless you would like to say anything more to me.
MISS BICARREQUI: My Lord, I do not have anything further to say, if that is your Lordship's view.
RABINDER SINGH QC: Very well. What I will order then in relation to costs is that the claimants are ordered to pay the defendant's costs to be the subject of detailed assessment if not agreed.
MR LOWE: Thank you, my Lord. May I raise one other matter briefly and that is the question of permission to appeal. My Lord, I only raise it in relation to one aspect of the matter and that is the matter which was the subject of the amendment. We say that there is a point of principle here that any reader of the Plan should objectively be able to read the Plan and know what the trigger for release is rather than it being left in a confused state to be determined in an application for planning permission. That is the sole ground on which we would seek my Lord's permission.
RABINDER SINGH QC: I understand, Mr Lowe. Is there anything you would like to say about that, Miss Bicarrequi? Are you in a position to deal with this now?
MISS BICARREQUI: No, is the answer, I am afraid, my Lord. I have what your Lordship said but I do not have the detailed knowledge of the case.
RABINDER SINGH QC: I entirely understand and respect that.
MR LOWE: My Lord, indeed. It is fair to say, I think my Lord may have seen a letter from the defendant's solicitors. I was informed yesterday that my learned friends could not be here and I said I would assent to any reasonable proposal for submissions to be made in writing if my Lord thought it appropriate.
RABINDER SINGH QC: Obviously I will hear anything else that you would like to say to me, but it does seem to me that the fair way to deal with this application for limited permission to appeal would be for you, Mr Lowe, to put in writing -- I am not suggesting anything long, perhaps one paragraph would suffice just to summarise the application you briefly made to me today, and supporting it with some brief reasons so that, in fairness, counsel who have been in the case for much longer have the opportunity to consider that in writing. I will give you however long you need. Do you need seven days?
MR LOWE: I have a slight difficulty in that I go away to an inquiry outside London this afternoon. I will not be back until the end of the week.
RABINDER SINGH QC: Let us not cause undue difficulties. I will give you seven days to do that and then I will direct that counsel for the defendant should make submissions in response to that, if so advised, in writing only within seven days of receipt. I will envisage, without binding myself to this, that I will then be able to give a short ruling on that in writing, provided the parties are content with that course. It seems to me that it would be unnecessarily expensive for us all to have to come back to court.
MR LOWE: I would respectfully endorse that course.
MISS BICARREQUI: Yes, my Lord.
RABINDER SINGH QC: Is there anything else before I put the papers all together? Can I thank everyone. I am sorry it has been a long judgment but I hope it is clear why it had to be. There was a lot of documentation that was to be rehearsed.
MR LOWE: Yes, my Lord.
RABINDER SINGH QC: Can I also, through you, thank not only Mr Lowe but counsel who appeared during the hearing. I am very grateful to everyone and their assistance has been genuinely helpful. Thank you very much.