EP1– Gallagher Homes Limited (2) Lioncourt Homes ... · strategy was considered at a regional, as well as local, level). Under the heading “Assessing an appropriate level of housing”:

EP1– Gallagher Homes Limited (2) Lioncourt Homes Limited v Solihull Metropolitan Borough Council (2014) – High Court Judgement

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HS1.02A (Part 1) Issue 1

Case No: C1/2014/1702 Neutral Citation Number: [2014] EWCA Civ 1610 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM QUEEN'S BENCH DIVISON (PLANNING COURT) MR JUSTICE HICKINBOTTOM CO/17668/2013

Royal Courts of Justice Strand, London, WC2A 2LL

Date: Wednesday 17th December 2014

Before :

LORD JUSTICE LAWS LORD JUSTICE PATTEN

and LORD JUSTICE FLOYD

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Solihull Metropolitan Borough Council Appellant - and - (1) Gallagher Estates Limited Respondents (2) Lioncourt Homes

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(Transcript of the Handed Down Judgment of

WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court)

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Mr Christopher Katkowski QC and Ms Rowena Meager (instructed by Solihull MBC Legal Services) for the Appellant

Mr Christopher Lockhart-Mummery QC and Mr Zack Simons (instructed by Pinsent Masons LLP) for the Respondents

Hearing dates : 25 November 2014

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LORD JUSTICE LAWS:

INTRODUCTION

1. Before the court are an appeal and a cross-appeal, both with permission granted by Sullivan LJ on 9 July 2014 and 2 October 2014 respectively, against the order of Hickinbottom J of 15 May 2014 following his judgment delivered on 30 April 2014 in the Planning Court at Birmingham. The two claimant companies in the case, now respondents, applied to the High Court under s.113(3) of the Planning and Compulsory Purchase Act 2004 to challenge the adoption on 3 December 2013 by the Solihull Metropolitan Borough Council, now the appellant, of the Solihull Local Plan (the SLP). The respondents have interests in two sites in the Tidbury Green area of Solihull where they propose to undertake housing development. But the SLP placed both sites in the Green Belt. If that state of affairs persists any application for planning permission for housing will, as the judge observed at paragraph 1 of his judgment, almost inevitably now be refused.

2. S.113(3) of the 2004 Act, which I need not set out, allows such a challenge to be brought on conventional public law grounds. The judge upheld the claim, which was brought on three grounds, and ordered that those parts of the SLP which he found to be defective should be treated as not adopted and be remitted to the Planning Inspectorate for re-examination by a different inspector. The appellant authority sought and obtained permission to appeal in relation to the judge’s conclusions on Grounds 1 and 3, and I will refer to the grounds of appeal in the same way. The issue on Ground 1, to borrow the language of Sullivan LJ granting permission, is whether (as the judge found) paragraph 47 of the National Planning Policy Framework (the NPPF) effected a “radical policy change in respect of housing provision” (judgment paragraph 98) so as to render unlawful the Inspector’s treatment of housing provision in his Report following the examination-in-public (the EIP) of the SLP. The issue on Ground 3 is whether the factors identified by the Inspector at paragraph 137 of his Report were not as a matter of law (as the judge found they were not) capable of constituting “exceptional circumstances” for the purpose of paragraph 83 of the NPPF. I will of course cite the relevant parts of the NPPF and other germane legal materials.

3. The respondent developers have permission to appeal in relation to the relief granted by the judge. They say the judge should have quashed those sections of the SLP which he found to be unlawful, rather than remit them for re-examination by another inspector. In the event there was something close to consensus between the parties in relation to the cross-appeal, to the effect that the right order (upon the premise that the appellant’s appeal on Grounds 1 and 3 failed) was to remit the defective parts of the SLP not to the Inspectorate, but to the Council.

4. The SLP is what under the Act of 2004 is called a “development plan document”. The adoption of such a document is constrained by a series of statutory requirements described by the judge at paragraphs 10 – 19 of his judgment. He summarised the position at paragraph 20 as follows:

“In summary, these provisions mean that each development plan document is subject to an examination in public by an independent inspector appointed by the Secretary of State, who

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determines (i) whether the plan complies with various procedural requirements, (ii) whether the plan is ‘sound’…, and (iii) whether it is reasonable to conclude that the local planning authority has complied with any duty to cooperate. Having done so, there are three courses open to the inspector:

i) If he is satisfied that the plan meets the procedural and ‘soundness’ requirements, he must recommend adoption of the plan and the authority may adopt the plan.

ii) If he is not satisfied as to these two matters, and is not satisfied that the authority has complied with its duty to cooperate, he must recommend non-adoption and the authority must not adopt the plan.

iii) If he is not satisfied as to these two matters, but is satisfied that the authority has complied with its duty to cooperate, he must recommend non-adoption; but, on the authority’s request, he must also recommend modifications to the plan that would make it satisfy those two requirements. The authority may then adopt the plan with those modifications.”

5. It is convenient at once to set out the material part of NPPF paragraph 47:

“To boost significantly the supply of housing, local planning authorities should:

• use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period;

• identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land…”

I should also refer to NPPF paragraph 14, which provides amongst other things that in furtherance of the presumption in favour of sustainable development –

“Local Plans should meet objectively assessed needs, with sufficient flexibility to adapt to rapid change, unless:

• any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when

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assessed against the policies in this Framework taken as a whole; or

• specific policies in this Framework indicate development should be restricted…”

I shall refer to other materials in addressing the arguments, including PPS3 (the earlier Planning Policy Statement on Housing) which was replaced by Part 6 of the NPPF. Amongst other things PPS3 referred (paragraph 33) to “Strategic Housing Market Assessments” (SHMAs) and (paragraph 34) “Regional Spatial Strategies” (RSSs). As I shall show their use survived in the NPPF regime.

THE APPELLANT’S CASE ON GROUND 1 SUMMARISED

6. I may describe the appellant’s argument on Ground 1 in the very broadest terms by adapting the summary at paragraph 36 of the skeleton argument for the respondents prepared by Mr Lockhart-Mummery QC. This approach is, I apprehend, loyal to the submissions made by Mr Katkowski QC for the appellants:

i) The judge was wrong to conclude that in respect of housing provision NPPF effected a “radical change” (a phrase used by the judge below at paragraph 98 of his judgment) from the previous policy articulated in PPS3.

ii) The judge was also wrong to hold that NPPF paragraph 47 required a two-step approach: first, an objective assessment of full housing needs, and secondly an assessment as to whether other policies dictate or justify constraint.

iii) The judge should have held that the process by which the Inspector came to recommend adoption of the SLP satisfied the requirements of NPPF paragraph 47.

iv) The judge should have held that the Inspector was entitled to conclude (as a matter of planning judgment) that the objective assessment of needs (OAN) was “embedded” in the earlier work of what is called the Phase II RSS Review Panel.

If these four points were resolved as the appellant contends, it would follow that the respondent developers’ challenge based on Ground 1 should have failed. The first two of the four points run together: the “radical change”, which the judge found was effected by the NPPF, consisted essentially in the requirement of the two-step approach which the appellant authority seeks to repudiate. I shall therefore consider them together. The fourth point, which is derived from paragraph 33 of the appellant’s skeleton argument prepared by Mr Katkowski QC, became rather more generalised in the course of argument: Mr Katkowski’s more compendious submission was that on a careful reading of the Inspector’s Report, it can be seen that he made an OAN. I shall deal with that.

GROUND 1: “RADICAL CHANGE” AND THE TWO-STEP APPROACH

7. I turn to the first two points. I have set out NPPF paragraph 47. PPS3, the earlier policy, included the following advice (written, of course, at a time when planning

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strategy was considered at a regional, as well as local, level). Under the heading “Assessing an appropriate level of housing”:

“32. The level of housing provision should be determined taking a strategic, evidence-based approach that takes into account relevant local, sub-regional, regional and national policies and strategies achieved through widespread collaboration with stakeholders.

33. In determining the local, sub-regional and regional level of housing provision, Local Planning Authorities and Regional Planning Bodies, working together, should take into account:

• Local and sub-regional evidence of need and demand, set out in Strategic Housing Market Assessments [‘SHMAs’] and other relevant market information such as long term house prices…

34. Regional Spatial Strategies [RSS] should set out the level of overall housing provision for the region [expressed as net additional dwellings (and gross if appropriate)], broadly illustrated in a housing delivery trajectory, for a sufficient period to enable Local Planning Authorities to plan for housing over a period of at least 15 years. This should be distributed amongst constituent housing market and Local Planning Authority areas.”

8. The judge said this at paragraph 31:

“31 Thus, the NPPF departed from the previous national guidance in two important ways.

i) In line with the Localism Act 2011, the NPPF abandoned the regional, top down, approach to housing strategy in favour of localism with a duty to cooperate with neighbouring authorities. The burden of developing housing strategy now falls on local planning authorities.

ii) Whilst clearly subject to a requirement that both plan-making and decision-taking must be consistent with other NPPF policies – including those designed to protect the environment – the NPPF put considerable new emphasis on the policy imperative of increasing the supply of housing. As reflected in the first words of the Ministerial Foreword…, in relation to dwellings, there was a policy objective to achieve a significant increase in supply. Therefore, the NPPF imposed the policy goal on a local authority of meeting its full, objectively assessed needs for market and affordable housing, unless and only to the extent that other policies were inconsistent with that goal. Thus, paragraph 47 makes full objectively assessed housing needs, not just a material consideration, but a consideration of particular standing.”

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Hunston Properties Ltd

9. The proper interpretation of NPPF paragraph 47 was earlier considered in Hunston Properties Ltd [EWCA] Civ 1610, discussed by Hickinbottom J in the present case at paragraphs 85 – 91 of his judgment. At paragraph 25 of Hunston Sir David Keene, with whom Ryder and Maurice Kay LJJ agreed, said this:

“The words in paragraph 47(1), ‘as far as is consistent with the policies set out in this Framework’ remind one that the Framework is to be read as a whole, but their specific role in that sub-paragraph seems to me to be related to the approach to be adopted in producing the Local Plan. If one looks at what is said in that sub-paragraph, it is advising local planning authorities:

‘to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework.’

That qualification contained in the last clause quoted is not qualifying housing needs. It is qualifying the extent to which the Local Plan should go to meet those needs. The needs assessment, objectively arrived at, is not affected in advance of the production of the Local Plan, which will then set the requirement figure.”

10. Hunston arose in the context of a planning application rather than a local development plan. But NPPF paragraph 47 is of course dealing with the production of Local Plans. Sir David Keene’s observations are not obiter, and in my judgment offer a construction of paragraph 47 which cannot be distinguished for the purposes of the present case. The passage I have cited is binding authority for the proposition that the making of the OAN is an exercise which is prior to, and separate from, the application to that assessment of the impact of other relevant NPPF policies: the phrase “as far as is consistent with the policy set out in this Framework” “is not qualifying housing needs. It is qualifying the extent to which the Local Plan should go to meet those needs”. This conclusion is undiminished by references in paragraph 26 to a “constrained housing requirement figure” and “rounded assessment”. This, moreover, is exactly how Hickinbottom J understood NPPF paragraph 47 – as with respect he was bound to do. He said this at paragraph 94 of his judgment:

“… [It] is clear that paragraph 47 of the NPPF requires full housing needs to be assessed in some way. It is insufficient, for NPPF purposes, for all material considerations (including need, demand and other relevant policies) simply to be weighed together. Nor is it sufficient simply to determine the maximum housing supply available, and constrain housing provision targets to that figure. Paragraph 47 requires full housing needs to be objectively assessed, and then a distinct assessment made as to whether (and, if so, to what extent) other policies dictate or justify constraint. Here, numbers matter; because the larger

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the need, the more pressure will or might be applied to infringe [sic: I apprehend ‘impinge’ is meant] on other inconsistent policies. The balancing exercise required by paragraph 47 cannot be performed without being informed by the actual full housing need.”

Arguments and Conclusion

11. It was and is Mr Katkowski’s submission that paragraph 47 is to be construed in light of the fact that earlier evidence might properly be drawn upon for the purpose of the assessment which the paragraph requires. So far as it goes, that is correct. NPPF paragraph 218 provides:

“Where it would be appropriate and assist the process of preparing or amending Local Plans, regional strategy policies can be reflected in Local Plans by undertaking a partial review focusing on the specific issues involved. Local planning authorities may also continue to draw on evidence that informed the preparation of regional strategies to support Local Plan policies, supplemented as needed by up-to-date, robust local evidence.”

12. Mr Katkowski prayed this in aid in support of his overall submission that NPPF by no means effected a radical change in the methodology of assessing housing need for the purpose of a Local Plan. He placed much emphasis on the fact that, just as with the NPPF, there were onerous requirements in previous policies. Thus he referred to PPS1, showing that “sustainable development” was the core principle: PPS1 paragraph 27(iv) required that sufficient land to meet expected needs for housing should be brought forward. Then PPS3 (specifically concerned with housing) paragraph 9 articulated a key policy as being to ensure that everyone can live in a decent home where they want to live; paragraph 11 required a robust evidence base for housing need and demand. Mr Katkowski also drew attention to paragraphs 32, 33, 52, 54, and Annex 2 to PPS3. I have already set out part of this material. The key passage is perhaps paragraph 32:

“The level of housing provision should be determined taking a strategic, evidence-based approach that takes into account relevant local, sub-regional, regional and national policies and strategies…”

Mr Katkowski also drew our attention to PPS12 (Local Spatial Planning), which refers at paragraph 2.4 to the availability of the necessary land.

13. In summary Mr Katkowski’s argument was that while NPPF is expressed in much crisper language, the approach to the ascertainment of housing need is essentially the same: need has to be considered along with other factors and in particular the impact of other policies, such as those relating to the Green Belt. There was no “radical change”, and no mandatory two-step approach.

14. I accept that there are aspects of the NPPF which reflect earlier planning policy. But there are also significant changes. They include the requirement in paragraph 47 to

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“boost” housing supply “significantly”, the formulation in paragraph 47 “to ensure that their Local Plan meets the full, objectively assessed needs…” (my emphasis), and the treatment of “soundness” in NPPF paragraph 182, which I need not read. I do not accept that Mr Katkowski’s comparison of the old policy with the new advances his case on the interpretation of the NPPF.

15. I should next set out the whole of paragraphs 96 – 98 of the judgment below:

“96.Mr Dove submitted that paragraph 218 of the NPPF encouraged – or at least allowed – the use of regional strategy policies and evidence that informed the preparation of regional strategy in the preparation of Local Plans. It was therefore open to the Inspector to take the policy on figure derived from the WM [sc. West Midlands] RSS Phase 2 Revision process, into which relevant demographic and other housing need evidence had gone, together with the relevant policy considerations, and which had been tested at an examination in public; and then see whether any more recent housing need evidence (e.g. later projections and SHMAs), or change in policy, undermined the Panel’s figure. That there had been no material alteration in circumstances was a matter for the planning judgment of the Inspector. The conclusion he reached had a clear evidential foundation, and was unimpeachable in law.

97.However, that fails to acknowledge the major policy changes in relation to housing supply brought into play by the NPPF. As I have emphasised, in terms of housing strategy, unlike its predecessor (which required a balancing exercise involving all material considerations, including need, demand and relevant policy factors), the NPPF requires plan-makers to focus on full objectively assessed need for housing, and to meet that need unless (and only to the extent that) other policy factors within the NPPF dictate otherwise. That, too, requires a balancing exercise – to see whether other policy factors significantly and demonstrably outweigh the benefits of such housing provision – but that is a very different exercise from that required pre-NPPF. The change of emphasis in the NPPF clearly intended that paragraph 47 should, on occasions, yield different results from earlier policy scheme; and it is clear that it may do so.

98.Where housing data survive from an earlier regional strategy exercise, they can of course be used in the exercise of making a local plan now – paragraph 218 of the NPPF makes that clear – but where, as in this case, the plan-maker uses a policy on figure from an earlier regional strategy, even as a starting point, he can only do so with extreme caution – because of the radical policy change in respect of housing provision effected by the NPPF. In this case, I accept that it was open to the Inspector to decide that the urban renaissance policy continued to be potent, and even (possibly) that the

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evidence of housing need had not significantly changed since the WM RSS Phase 2 Revision Draft target was set – those were matters of planning judgment, for him. However, in my judgment, in his approach, he failed to acknowledge the new, NPPF world, with its greater policy emphasis on housing provision; and its approach to start with full objectively assessed housing need and then proceed to determine whether other NPPF policies require that, in a particular area, less than the housing needed be provided. The WM RSS Phase 2 Revision Panel did not, of course, adopt that approach. Nor did the guidance provided by the Secretary of State on the revocation of regional strategies in 2010… take the new policy into account. Both were pre-March 2012, when the NPPF was published.”

16. That reasoning seems to me to be entirely correct. I think it is supported not only by the language of paragraph 47 but also by the terms of NPPF paragraph 14 which I have read. It is not undermined, notwithstanding Mr Katkowski’s submission to the contrary, by the terms of the second indent to the second bullet point in that paragraph. It reflects the construction of paragraph 47 given by this court in Hunston, which bound Hickinbottom J and binds us. The NPPF indeed effected a radical change. It consisted in the two-step approach which paragraph 47 enjoined. The previous policy’s methodology was essentially the striking of a balance. By contrast paragraph 47 required the OAN to be made first, and to be given effect in the Local Plan save only to the extent that that would be inconsistent with other NPPF policies. Mr Katkowski in his skeleton argument characterised this result as mechanistic. I cannot see why it should be so described. The two-step approach is by no means barren or technical. It means that housing need is clearly and cleanly ascertained. And as the judge said at paragraph 94, “[h]ere, numbers matter; because the larger the need, the more pressure will or might be applied to [impinge] on other inconsistent policies”.

GROUND 1: DID THE INSPECTOR FULFIL THE REQUIREMENTS OF NPPF PARAGRAPH 47?

17. Here I address points 3 and 4 of the four propositions I set out at paragraph 6 as a summary of Mr Katkowski’s argument. He submitted that an OAN is in fact to be found in the Inspector’s Report, though it is not spelt out and expressed as such. In the court below Mr Dove QC (as he then was) on the appellant’s behalf conceded that no OAN is identified in the Report: see paragraphs 70 and 83(iii) of the judgment. Paragraph 99 (to which I will return) expresses the concession more baldly: “Mr Dove conceded – as he had to do – that neither the SLP nor the Inspector provided any full and objective assessment of housing need”. But Mr Katkowski sought to qualify Mr Dove’s concessions. He accepted that nowhere in the Report does the inspector expressly indicate a figure for OAN; however he submitted that it is to be found there if, as it were, the reader looks hard enough. This is close to Mr Dove’s counterblast to his own concession in the court below, as recorded by the judge at paragraph 70:

“…but, he submitted, it was not necessary for a plan to identify such a figure and, on a proper analysis of the Inspector’s

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Report, the substantive requirements of the NPPF (including those of paragraphs 47 and 159) were satisfied in this case.”

18. Mr Katkowski’s argument that NPPF paragraph 47 is in fact satisfied by the Inspector’s Report is predicated upon his construction of that paragraph. As I understood him he accepted without cavil that the Inspector did not undertake the two-step approach which, in agreement with the judge, I have found to be mandatory. Accordingly his submission that an OAN is to be found in the Report cannot carry the appeal if my Lords agree with my conclusions on the construction issue. But in deference to the argument I will address the point, albeit shortly.

19. Mr Katkowski said the Inspector took account of assessments of housing needs which were before him, and referred to paragraphs 10, 24, 25 and 26 of the Report. These paragraphs variously refer to the WM RSS Phase 2 Revision, the 2009 Solihull SHMA and other materials. These are also referred to in paragraphs 51 – 64, the central passage of the Report for present purposes: it is headed “Overall level of housing provision”, and Mr Katkowski of course paid it close attention. None of these documents arguably constitutes or includes an OAN. The RSS review figure, which plainly feeds into the Inspector’s conclusion, was expressly not an assessment of OAN. The Council made that very clear in submissions to the Inspector in March 2013: I will not set them out. (As I have foreshadowed, Mr Katkowski did not emphasise the specific submission advanced in his skeleton argument that the OAN was “embedded” in the RSS, and I need not address it distinctly.) As for the SHMA, it did not purport to assess OAN, as the Council acknowledged in a supplementary statement to the Inspector of 18 January 2013:

“The SHMA does not attempt to model new-build housing need as it is set in the context of the requirements of the emerging RSS.”

See also paragraph 45 of the judgment.

20. I should refer also to the Department for Communities and Local Government interim projections (published in April 2013), another item of evidence having to do with housing need, and referred to in some of the passages in the Report to which Mr Katkowski drew attention. However this only gave figures for 2011-2021, whereas the SLP period was 2006-2028. And again it was the Council’s own position that the DCLG projections could not and did not purport to model housing need: see also the judge’s discussion at paragraph 37(i) of the judgment.

21. In paragraphs 105-109 the Inspector dealt with affordable housing need, and at paragraph 108 gives what appears to be a figure, or at least a range, for the full need for such housing. Mr Katkowski sought to make something of this; but of course the need for affordable housing cannot constitute the whole picture.

22. I turn next to a submission which was largely developed by Mr Katkowski in his reply. It turns on paragraph 54 of the Inspector’s Report, which reads in part:

“Furthermore, the proposed housing provision level in the SLP [sc. 11,000 new dwellings] exceeds that which would be needed by the Borough’s own population and includes a

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significant element (60-65%) associated with in-migration, reflecting the urban renaissance strategy. With a successful continued implementation of the urban renaissance strategy, there may not actually be any shortfall in housing provision compared with the latest 2008 and 2011-based household projections.”

Mr Katkowski laid emphasis on the fact that the “urban renaissance strategy” is part and parcel of planning policy. He submitted that these observations by the Inspector disclose a finding that the OAN is in fact well under 11,000. That figure includes in-migration, which is simply attributable to planning policy and should be left out of account. I cannot see why that should be so. The Solihull SHMA updated in 2009 fed into the Inspector’s conclusions (see paragraph 56 of the Report). NPPF paragraph 159 shows that the SHMA to be prepared by the local planning authority “should identify the scale and mix of housing… that the local population is likely to need over the plan period which… meets household and population projections, taking account of migration and demographic change”. That must mean actual projections. There was nothing notional about that part of the 11,000 figure which represented prospective in-migration in line with the urban renaissance strategy.

23. The Inspector’s conclusion at paragraph 64 reads as follows:

“Taking account of all the evidence and having examined all the elements that go into making an objective assessment of housing requirements, a total level of 11,000 dwellings or 500 dwellings/year represents an effective, justified and soundly based figure which would meet the current identified housing needs of the district over the plan period and, with the agreed amendments, is consistent with the overall requirements of national policy in the NPPF.”

24. The 11,000 is very plainly a “policy-on” figure, not an OAN within the meaning of NPPF paragraph 47. So much is clear from the Inspector’s language (“consistent with the overall requirements of national policy in the NPPF”). The Council had not for its part proposed an OAN, as the document setting out its case on housing before the Inspector, to which Mr Lockhart-Mummery referred, amply demonstrates. In the SLP itself the “justification” for policy 5 (Provision of Land for Housing) has this at paragraph 8.4.2:

“It is considered that 11,000 (net) additional homes can be delivered towards meeting projected household growth of 14,000 households (2006-2028). This is the level of housing provision that the Council considers can be provided without adverse impact on the Meriden Gap, without an unsustainable short-term urban extension south of Shirley and without risking any more generalised threat to Solihull’s high quality environment.”

25. The judge gathered this part of the case together at paragraph 99:

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“The Inspector did not acknowledge, or take into account, that change. I accept that the Inspector might have taken that change into account in a number of ways. However, in one way or another, he was required to assess, fully and objectively, the housing need in the area. In the event, he made no attempt to do so. Mr Dove conceded – as he had to do – that neither the SLP nor the Inspector provided any full and objective assessment of housing need. Nor is there any evidence that the WM RSS Phase 2 Revision Panel made such an assessment, either: they had evidence of need before them, but there is no evidence that, as required by the NPPF, they assessed the full and objective housing need before considering constraints on meeting that need. Indeed, the evidence is that they went straight to policy on figures for the region in a conventional planning balancing exercise, with all material factors in play – as they were entitled to do under the pre-NPPF regime – and then proceeded to carve up that policy on requirement between the various areas within the region. Even as a surrogate, that did not comply with the NPPF requirements, properly construed. The further projections and 2009 SHMA did nothing to assist in this regard.”

The judge added this at paragraph 100:

“…When the report is read as a whole, far from full objectively assessed housing need being a driver in terms of the housing requirement target – as the NPPF requires – it is at best a back-seat passenger. Nowhere is the full housing need in fact objectively assessed. As I have said, the reference to the work done by the WM RSS Phase 2 Revision Panel does not assist, because there is no evidence that they assessed such need either. In any event, the Inspector appears to accept that the WM RSS Phase 2 Revision Panel target did not fully meet all housing needs (paragraph 53). Further, in paragraph 10… he says:

‘There is insufficient evidence to demonstrate that Solihull does not intend to full meet its objectively assessed housing requirements …’

All of this makes clear, in my view, that the Inspector erred in his approach to this issue: he failed to have proper regard to the policy requirements of the NPPF.”

Conclusion

26. In the result it is in my judgment clear that the process by which the Inspector came to recommend the adoption of the SLP did not meet the requirements of the NPPF. The reality is that neither the appellant Council in proposing the SLP nor the Inspector in recommending its adoption undertook an OAN as a separate and prior exercise to the consideration of the impact of other policies. The Inspector’s recommendation was therefore flawed by error of law, as the judge found.

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27. There is a postscript to Ground 1. It has been described as the “technical issue”. It concerns the treatment of the DCLG interim projections which were published in April 2013. As I have said these cover the 10 year period up to 2011. The appellant Council claimed that the data could be extrapolated forward to 2028. That was disputed. The issue’s resolution was, no doubt, a matter of planning judgment. The inspector recognised that there was a dispute (paragraph 55 of the Report). But there are signs in paragraphs 52 and 53 that he may have proceeded on the basis of the Council’s approach without reasoning why it was right to do so; though the DCLG projections were of course only one factor in a web of materials. It is unnecessary to decide whether there was here a further legal error; I mention the point only because it seems to me (given that the DCLG projections were clearly not an OAN) to underline the conclusion that the two-step approach enjoined by NPPF in paragraph 47 was not followed.

GROUND 3: “EXCEPTIONAL CIRCUMSTANCES”

28. Ground 3 concerns the Inspector’s treatment of “exceptional circumstances”. NPPF paragraph 83 provides:

“…Local planning authorities with Green Belts in their area should establish Green Belt boundaries in their Local Plans which set the framework for Green Belt and settlement policy. Once established, Green Belt boundaries should only be altered in exceptional circumstances, through the preparation or review of the Local Plan. At that time, authorities should consider the Green Belt boundaries having regard to their intended permanence in the long term, so that they should be capable of enduring beyond the plan period.” (emphasis added)

29. The issue on this part of the case is whether the provision in the SLP (following the Inspector’s recommendation) by which the respondents’ two sites were allocated to the Green Belt was lawful having regard to paragraph 83. The judge said this at paragraph 120:

“120. The SLP allocated the Sites to the Green Belt, whilst removing other sites (particularly in the north of the borough) as the most appropriate means of providing land sufficient to meet the housing requirement which it of course set at 11,000 new dwellings by 2028. There were strong objections to the reallocation of the Sites, on the basis that a reallocation could only be made in exceptional circumstances – and no such circumstances existed in this case.”

30. Many years previously the sites had been designated Interim Green Belt. Their removal from the Green Belt was formalised in 1997. The matter was reconsidered in the March 2005 report of the inquiry into the objections to the first Review of the UDP. The Inspector, in fact the same Inspector, Mr Pratt, who conducted the enquiry into the SLP in the present case, concluded:

“3.149…Both sites are well contained and the Green Belt boundary remains firm and well-defined. There is no erosion

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of the gap between Solihull and Redditch and, given the retention of the Green Belt around Grimes Hill in Bromsgrove DC, no risk of coalescence with this settlement. Their designation as safeguarded land would not harm the visual amenity or open character of the adjoining Green Belt, and provides certainty, rather than blight. Given the enduring nature of Green Belt boundaries and the firm advice in PPG2 that such boundaries should not be frequently changed, I can see no exceptional circumstances that would justify deleting the sites as safeguarded land or returning them to the Green Belt.”

The Inspector in the SLP Report with which we are concerned in this case said at paragraph 137:

“There is also serious concern about the proposed return to the Green Belt of some Safeguarded Land previously identified in the SUDP. However, when the SUDP was examined, it was made clear that the status of this land should be reviewed in the context of the approved and emerging WMRSS strategy of urban renaissance… SMBC [the Council] undertook this review, and rejected the future development sites at Tidbury Green because this settlement lacks the range of facilities necessary for further strategic housing growth; the scale of development envisaged would also be far too large to meet local housing needs and would threaten the coalescence with settlements, including Grimes Hill. National policy enables reviews of the Green Belt to be undertaken (NPPF paragraph 84), including considering the need to promote sustainable patterns of development, and it is clear from SMBC’s evidence that these sites would not meet this objective. These factors constitute legitimate reasons and represent the exceptional circumstances necessary to justify returning these sites to the Green Belt.”

31. The adopted SLP has this at paragraph 11.6.6:

“The safeguarded land at Tidbury Green was removed from the Green Belt in the UDP 1997 for possible long term housing needs. Following assessment in the Strategic Housing Land Availability Assessment, this land is no longer considered suitable for development and is proposed to be returned to Green Belt.”

32. The judge said this:

“135. I am persuaded by Mr Lockhart-Mummery that the Inspector, unfortunately, did not adopt the correct approach to the proposed revision of the Green Belt boundary to include the Sites, which had previously been white, unallocated land. He performed an exercise of simply balancing the various current policy factors, and, using his planning judgement, concluding

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that it was unlikely that either of these two sites would, under current policies, likely to be found suitable for development. That, in his judgment, may now be so: but that falls very far short of the stringent test for exceptional circumstances that any revision of the Green Belt boundary must satisfy. There is nothing in this case that suggests that any of the assumptions upon which the Green Belt boundary was set has proved unfounded, nor has anything occurred since the Green Belt boundary was set that might justify the redefinition of the boundary.”

33. In COPAS [2001] EWCA Civ 180, [2002] PCR 16 Simon Brown LJ said this at paragraph 40:

“I would hold that the requisite necessity in a PPG 2 paragraph 2.7 case like the present – where the revision proposed is to increase the Green Belt – cannot be adjudged to arise unless some fundamental assumption which caused the land initially to be excluded from the Green Belt is thereafter clearly and permanently falsified by a later event. Only then could the continuing exclusion of the land from the Green Belt properly be described as ‘an incongruous anomaly’.”

Mr Katkowski submits that this case was decided under a different planning policy: PPG2 paragraph 2.7 referred to “exceptional circumstances… which necessitate such revision” (my emphasis). He says that the NPPF rule is different, in particular because paragraph 83 omits the requirement of necessity, and COPAS is accordingly no authority for its true construction.

34. The policies are indeed differently worded. However, it is to be noted that the judge did not merely refer to COPAS. He referred also to Carpets of Worth, Ltd v Wyre Forest DC (1991) 62 PCR 334. I cite this passage from the judgment of Purchas LJ:

“… [O]nce a green belt has been established and approved as a result of all the normal statutory processes it must require exceptional circumstances rather than general planning concepts to justify an alteration. Whichever way the boundary is altered there must be serious prejudice one way or the other to the parties involved.”

In this context I should also note paragraphs 79 and 80 of the NPPF:

“79. The Government attaches great importance to Green Belts. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence.

80. Green Belt serves five purposes:

To check the unrestricted sprawl of large built-up areas;

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To prevent neighbouring towns merging into one another;

To assist in safeguarding the countryside from encroachment;

To prevent the setting and special character of historic towns; and

To assist in urban regeneration, by encouraging the recycling of

derelict and other urban land.”

It is also of some importance to notice what the judge said at paragraph 125(b):

“b) For redefinition of a Green Belt, paragraph 2.7 of PPG2 required exceptional circumstances which ‘necessitated’ a revision of the existing boundary. However, this is a single composite test; because, for these purposes, circumstances are not exceptional unless they do necessitate a revision of the boundary (COPAS at [23] per Simon Brown LJ). Therefore, although the words requiring necessity for a boundary revision have been omitted from paragraph 83 of the NPPF, the test remains the same. Mr Dove expressly accepted that interpretation. He was right to do so.”

35. In the circumstances there is in my judgment nothing in the verbal differences between PPG2 and NPPF paragraph 83 which advances Ground 3. But that was not the end of Mr Katkowski’s argument. The Inspector’s reasoning at paragraph 137 of the Report describes factors tending against the use of the sites for housing. Mr Katkowski emphasised the terms of paragraph 84 of the NPPF:

“When drawing up or reviewing Green Belt boundaries local planning authorities should take account of the need to promote sustainable patterns of development. They should consider the consequences for sustainable development of channelling development towards urban areas inside the Green Belt boundary, towards town and villages inset with the Green Belt or towards locations beyond the outer Green Belt boundary.”

As I have shown, the Inspector refers to paragraph 84 in paragraph 137 of the Report. Mr Katkowski’s submission is that the conclusion that these sites are in the circumstances not suitable for housing, shows – and the Inspector effectively found – that their exclusion from the Green Belt would not conduce to sustainable development, because housing in those locations would not constitute such development: so that on analysis the Inspector’s recommendation that they should be returned to the Green Belt was based on a “Green Belt Reason”.

36. This is an ingenious submission, but I do not accept it. The fact that a particular site within a council’s area happens not to be suitable for housing development cannot be said without more to constitute an exceptional circumstance, justifying an alteration of the Green Belt by the allocation to it of the site in question. Whether development would be permitted on the sites concerned in this case, were they to remain outside the Green Belt, would depend upon the Council’s assessment of the merits of any

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planning application put forward. Moreover it is to my mind significant that in essence the merits or demerits of the possible use of these sites for housing have not apparently changed since 2005 when the same Inspector took a view diametrically opposed to his conclusion at paragraph 137: in March 2005 he had clearly concluded that the sites did not need to go into the Green Belt (and in the Solihull UDP of 2006 they were earmarked for review for housing). Yet at paragraph 137 of his current Report the Inspector makes no reference to his earlier opinion. For good measure, the SLP itself (paragraph 11.6.6, which I have read) plainly does not return the sites to the Green Belt for a Green Belt Reason.

37. For these reasons I consider that Ground 3 fails, and if my Lords agree the appeal will be dismissed.

THE CROSS-APPEAL

38. The cross appeal concerns the relief granted by the judge, which was as I have said to remit the case for re-examination by another inspector. The respondent developers say that he should have quashed the SLP.

39. The court has wide powers under s.113(7) on the 2004 Act. It is clear (and uncontentious) that it may quash the SLP; remit the case for re-examination by another inspector, as the judge ordered; or remit it to the Council for reconsideration by them in light of the court’s judgment.

40. The appellant rightly submits (paragraph 66 of counsel’s skeleton argument) that the legal errors in the case arose, or first arose, before the Inspector conducted the EIP. They arose in the Council’s preparation of the SLP The Council failed to proceed upon a correct understanding of NPPF paragraph 47. They did not undertake or propose the two-step approach which NPPF required. In these circumstances I do not consider that the legal flaws in the SLP can be cured simply by a further examination before a different inspector. The Council needs to think again. But it is not necessary to quash the SLP; the right course is to remit it, rather those parts of it infected by legal error, to the Council requiring it to reconsider the proposed SLP in light of this court’s judgment and to cure the illegalities in their earlier preparation.

41. In these circumstances I would order those parts of the SLP which are tabulated in the schedule to the judge’s order to be remitted to the Council. To that extent I would allow the cross-appeal.

LORD JUSTICE PATTEN:

42. I agree.

LORD JUSTICE FLOYD:

43. I also agree.

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EP2 – Wainhomes representations to the Plymouth Plan

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Project : 6916

Site : Plymouth Plan

Client : Wainhomes (South West)

Holdings Ltd

Date : 3rd March 2015

Author : Stephen Harris

This report has been prepared for the

client by Emery Planning with all

reasonable skill, care and diligence.

No part of this document may be

reproduced without the prior written

approval of Emery Planning.

Emery Planning Partnership Limited

trading as Emery Planning.

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EP3 – Christchurch and East Dorset Councils Core Strategy Inspector’s Report

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Report to Christchurch and East Dorset

Councils

by Sue Turner

an Inspector appointed by the Secretary of State for Communities and Local Government

Date 21 March 2014

PLANNING AND COMPULSORY PURCHASE ACT 2004 (AS AMENDED)

SECTION 20

REPORT ON THE EXAMINATION INTO THE CHRISTCHURCH AND EAST DORSET CORE STRATEGY LOCAL PLAN

Document submitted for examination on 14 March 2013

Examination hearings held between 10 and 26 September 2013

File Ref: E/1210/429/2

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Abbreviations Used in this Report

AA Appropriate Assessment AMR Annual Monitoring Report

CUE Christchurch Urban Extension CIL Community Infrastructure Levy

DCC Dorset County Council DHPFSPD South East Dorset Heathlands Planning Framework SPD DPD Development Plan Document

ELR Employment Land Review FZ Flood Zone

GTTDPD Gypsy, Traveller and Travelling Showpeople sites DPD IDP Infrastructure Delivery Plan

LDS Local Development Scheme MM Main Modification NATS National Air Traffic Service

NPPF National Planning Policy Framework OMP East Dorset Housing Options Masterplan Report

RSS Regional Spatial Strategy SA Sustainability Appraisal SANG Suitable Alternative Natural Greenspace

SCI Statement of Community Involvement SCS Sustainable Community Strategy

SED South East Dorset Strategy 2005 SFRA Strategic Flood Risk Assessment SHLAA Strategic Housing Land Availability Assessment

SHMA Strategic Housing Market Assessment SNCI Site of Nature Conservation Interest

SSCT Strategic Significant City and Town WS Workspace Study WSDP Workspace Study Delivery Plan

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Christchurch and East Dorset Councils Core Strategy Local Plan, Inspector’s Report March 2014

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Non-Technical Summary

This report concludes that the Christchurch and East Dorset Core Strategy Local Plan is sound and provides an appropriate basis for the planning of the Area over the next 15 years providing a number of modifications are made to the plan. The Councils have specifically requested me to recommend any modifications necessary to enable the plan to be adopted. All of the modifications to address this were proposed by the Councils but where necessary I have amended detailed wording and I have recommended their inclusion after considering the representations from other parties on these issues.

The Main Modifications can be summarised as follows:

Add plans to illustrate the exact Green Belt boundary changes that the

Councils are proposing;

Update and correct references to the transportation projects that will support delivery of the Plan to reflect the updated IDP and the Local

Transport Plan; Update the housing target to properly reflect the SHMA;

Add a housing trajectory to demonstrate a five year supply of housing and illustrate how housing delivery will be managed across the Plan period;

Allocate housing site VTSW5 to boost housing delivery;

Update housing numbers on individual sites to reflect new evidence taking account of environmental constraints and masterplanning work;

Clarify the Plan’s approach to the provision of SANG and other infrastructure in relation to the CIL regulations;

Amend policies for protecting historic heritage, designated Heathlands and

protected landscapes to ensure consistency with national and international policy;

Clarify and update policies to ensure that the Plan is clear, effective and consistent with national policy.

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Introduction

1. This report contains my assessment of the Christchurch and East Dorset Core

Strategy Local Plan (the Plan) in terms of Section 20(5) of the Planning & Compulsory Purchase Act 2004 (as amended). It considers first whether the Plan’s preparation has complied with the duty to co-operate, in recognition

that there is no scope to remedy any failure in this regard. It then considers whether the Plan is sound and whether it is compliant with the legal

requirements. The National Planning Policy Framework (NPPF) (paragraph 182) makes clear that to be sound a Local Plan should be positively prepared;

justified; effective and consistent with national policy.

2. The starting point for the examination is the assumption that the local authority has submitted what it considers to be a sound plan. The basis for

my examination is the consolidated version of the submitted draft plan (March 2013). This document combines the Core Strategy Pre-Submission

Consultation Document (April 2012) with the Schedule of Proposed Changes to the Core Strategy Pre Submission Document, November 2012.

3. My report deals with the main modifications that are needed to make the Plan

sound and legally compliant and they are identified in bold in the report (MM). In accordance with section 20(7C) of the 2004 Act the Council requested that I

should make any modifications needed to rectify matters that make the Plan unsound/not legally compliant and thus incapable of being adopted. These main modifications are set out in the Appendix.

4. The main modifications that are necessary for soundness all relate to matters that were discussed at the Examination hearings. Following these discussions,

the Council prepared a schedule of proposed main modifications and carried out sustainability appraisal and this schedule has been subject to public consultation for six weeks. I have taken account of the consultation responses

in coming to my conclusions in this report.

Public Consultation

5. The Statement of Community Involvement (SCI) was adopted in 2006 by both Councils. It was prepared in the context of the Town and Country Planning (Local Development) (England) Regulations 2004 (the 2004 Regulations).

The 2004 Regulations required a Development Plan Document (DPD) to be subject to public participation at pre-submission stage (under regulation 26),

whilst Regulation 28 required it to be made available for further inspection when it was submitted to the Secretary of State. Regulation 29 allowed representations to be made on the submission version of the DPD.

6. The Councils’ SCI reflects the stages in the 2004 regulations but separates the Regulation 28 consultation into two stages which are identified as “Submission

Consultation” and “Alternative Site Consultation.”

7. The 2004 Regulations have been superseded by the Town and Country Planning (Local Planning) (England) Regulations 2012 (the 2012 Regulations).

Local Planning Authorities must now consult on a local plan before it is submitted to the Secretary of State (regulations 19 and 20). Regulation 22

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requires the local plan to be submitted together with, amongst other things, a summary of the representations made pursuant to regulation 20.

8. The Plan has been subject to two stages of consultation, as referred to in paragraph 2 above. The pre submission consultation resulted in 3,822 representations and led to a significant number of changes. The Councils then

undertook an additional consultation exercise before submitting the plan. This consultation, on the “Schedule of Proposed Changes to the Core Strategy,”

resulted in a further 482 representations. All of these representations were submitted for examination with the Plan and have been considered through the examination process.

9. It is argued that the Plan has not been subject to consultation in accordance with the adopted SCI because the second stage of regulation 28 consultation,

referred to as “Alternative Site Consultation,” has not taken place. The 2004 Regulations make no reference to alternative site consultation and the requirements in regulation 28 imply a single stage of consultation. It is

therefore unclear exactly what purpose the proposed two stage submission (Regulation 28) consultation set out in the SCI is intended to serve. However

from my reading of the documentation it is evident that alternative sites have been considered throughout the development of the Plan, including at the

Regulation 28 consultation (Pre submission consultation) and at the consultation on the schedule of proposed changes.

10. It is unfortunate that the Councils have not updated the SCI to reflect the

requirements of the 2012 Regulations. However the two stages of consultation that precede submission are in accordance with the 2012

regulations. Consultation on the Schedule of Proposed Changes (November 2012) provided a further opportunity for participation that was broader than the restricted “Alternative Site” consultation envisaged in the SCI.

11. In these circumstances I am satisfied that public consultation on the Plan has been in accordance with the most up to date legislation, the 2012 Regulations,

and that it has been broadly consistent with the SCI. For the avoidance of any further confusion I recommend that the SCI is updated as soon as possible.

Assessment of Duty to Co-operate

12. Section s20(5)(c) of the 2004 Act requires that I consider whether the Council

complied with any duty imposed on them by section 33A of the 2004 Act in relation to the Plan’s preparation.

13. The Councils have liaised with the relevant prescribed bodies and local authorities. Early work on the strategic priorities and evidence base for the draft Regional Spatial Strategy (RSS) was carried out with other Dorset local

authorities, Hampshire and Wiltshire authorities, Natural England and the Environment Agency. Some of this work has been carried forward to inform

the preparation of the Plan, including work on the strategic review of the Green Belt (GB).

14. The Councils have continued to work on a number of policies and strategies

with the County Council, Dorset Councils and, where appropriate, the Highways Agency, Natural England and the Environment Agency. These

include the Local Transport Plan, Bournemouth Christchurch, East Dorset and

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Salisbury Strategic Flood Risk Assessment, strategies for minerals and waste, green infrastructure, shoreline management, renewable energy, and meeting

the needs of Gypsy, Traveller and Travelling Showpeople. Collaborative working with adjacent authorities also underpins the Plan’s approach to economic development. The sub regional workspace strategy for the

Bournemouth, Dorset and Poole area includes employment land projections to 2031. A similar approach has been taken to retail forecasting through a Joint

Retail Assessment.

15. The Plan area falls within the Bournemouth, Dorset and Poole Strategic Housing Market Area (SHMA) and the Councils have worked jointly with other

Dorset Councils to prepare the 2008 SHMA Assessment and the 2012 update. This group has also established an agreed methodology for the preparation of

the Strategic Housing Land Availability Assessments (SHLAAs) in the SHMA.

16. The councils in the SHMA area have worked together to interpret and update the Dorset County Council household projections. Bournemouth, Poole,

Purbeck and New Forest District Councils all have adopted Core Strategies and in some cases these require early review to address shortages in housing land

supply. North Dorset and New Forest, which adjoins the Plan area but is not in the SHMA, are both meeting their objectively assessed housing needs. There

is no requirement identified in the SHMA for the Plan area to meet any unmet need from neighbouring authorities and none of the relevant districts have argued to this effect.

17. The Councils have collaborated with the relevant neighbouring authorities to address the impact of housing growth on the Dorset Heathlands. This has

resulted in a joint evidence base which has informed a draft Dorset Heathlands DPD (not now proceeding) and the Dorset Heathlands Planning Framework Supplementary Planning Document (DHPFSPD).

18. The Councils have worked together with a range of stakeholders, including neighbouring authorities and Manchester Airports Group, to prepare a bid for

the Bournemouth and Poole City Region - City Deal. The expression of interest was approved by the government early in February 2013. Work on the policy for Bournemouth Airport and Business Park has been informed by

the Airport Advisory Group, which included New Forest District Council and New Forest National Park Authority, Bournemouth and Poole Councils,

Manchester Airports Group and Natural England.

19. Community engagement in preparation of the Plan and preparation of the Sustainable Community Strategy for each area has been progressed through

the Christchurch Community Partnership and the East Dorset Community Partnership. In the later stages of plan preparation work has been undertaken

with the Local Enterprise Partnership which was formed in 2012.

20. Evidence for the new neighbourhoods, including Christchurch Urban Extension (CUE) was prepared in co-operation with stakeholders in the local community

as well as the Highways Agency, Natural England, Environment Agency, water utilities providers, Dorset County Council, adjacent local authorities and New

Forest National Park Authority. The Plan as a whole, and especially the Strategic Allocations, is underpinned by the Infrastructure Delivery Plan (IDP), which has been prepared in collaboration with stakeholders, including key

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delivery agencies, town and parish councils and emergency services and utility providers. In particular planning for CUE has included cross boundary work

with New Forest District Council to address matters such as transportation, Suitable Alternative Natural Greenspace (SANG) strategy and the provision for replacement allotments.

21. In conclusion I am satisfied that the Councils have undertaken effective cooperation with neighbouring authorities on strategic matters, including joint

working on areas of common interest and have pursued a continuous process of engagement, which is more than consultation.

Assessment of Soundness

Main Issues

22. Taking account of all the representations, written evidence and the discussions that took place at the examination hearings I have identified eleven main

issues upon which the soundness of the Plan depends.

Issue 1 – Is the overall strategy justified and effective?

23. Christchurch Borough Council and East Dorset District Council have worked in partnership since 2005 and have prepared a single Plan to cover the area of the two local authorities. The overall strategy and generic policies apply to the

whole area. Strategic allocations and policies that set out a vision for town centres or a strategy for change in specific locations are grouped together in

spatial groups.

Does the Plan identify the strategic priorities for the area?

24. The Plan identifies a complex range of interconnected challenges for the area.

It is part of the South East Dorset conurbation, one of the south coast’s major urban centres, and has a broadly based economy which is well served by

Bournemouth Airport and the port of Poole. However this is in the context of a congested transport network and poor road and rail links out of the region.

25. There is a high demand for housing, with in migration contributing to an

almost limitless housing demand, but the Plan also recognises that the high proportion of the population over retirement age has implications not only for

housing, but for economic growth, health and community facilities.

26. These issues have had to be addressed in the context of a number of historic towns and villages and a high quality natural environment, with extensive

areas covered by internationally protected designations. In particular the Dorset Heathlands are under significant pressure from residential

development. The Plan has also had to take account of additional constraints presented by flood zones, the South East Dorset Green Belt (GB) and landscape designations.

Do the Plan’s vision and objectives identify clear and sustainable goals to address the strategic priorities?

27. The Plan sets out seven objectives to address the challenges faced by the area. The need for economic growth, vibrant retail centres, affordable housing

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and improved transport choices are balanced against the need to protect and manage the natural and built environment and adapt to the challenges of

climate change.

28. Subject to the insertion of the Key Diagram into the Plan (MM4) the vision and objectives set out clear and sustainable goals which balance conflicting

pressures.

Are the Councils’ proposals for strategic release of land from the Green Belt

justified by exceptional circumstances?

29. The most controversial issue that the Plan has had to address has been balancing the protection of the GB with the need for development. The NPPF

requires local planning authorities to positively seek opportunities to meet the development needs of their area. The quantum of development required for

housing and employment in the area is discussed in detail later in this report. However the Key Strategy includes, within Policy KS2, limited changes to GB boundaries to accommodate housing and employment development.

30. Understandably this part of the strategy has caused considerable concern. Local residents in particular have questioned not only the Councils’ justification

for the proposed loss of GB land but also whether the GB boundary changes can be made through the Plan.

31. The NPPF draws attention to the importance of GBs and sets out the five purposes which they serve. Paragraph 83 advises that once they have been defined, GB boundaries should only be altered in exceptional circumstances,

through the preparation or review of the local plan. Thus, provided exceptional circumstances exist, it is clear that this Plan is an appropriate

vehicle for making adjustments to GB boundaries.

32. The Councils have undertaken detailed assessments to establish the quantum of development that can be accommodated within the urban areas or on

previously developed land. The SHLAAs provide a detailed analysis of the capacity of the urban areas to accommodate new housing, driving down to a

level of detail which includes examination of very small sites. They demonstrate that there is a shortfall of over 3,000 dwellings which cannot be provided in the urban area. Similarly the Councils have shown through

analysis of employment land supply that the urban areas cannot accommodate the full 80 hectares that is needed to provide for employment growth.

33. Therefore to address strategic priorities and plan positively for homes and jobs the Councils have had to consider the need to provide some housing and employment development on land currently in the GB. This represents the

exceptional circumstances that justify a review of GB boundaries.

34. It has been suggested that the GB boundary review should provide some

flexibility to allow for small housing sites that might come forward in future, including as rural exceptions. However the importance of the GB is such that only essential and justified changes can be considered as exceptional

circumstances. There is no evidence to support anything other than the rigorous and tightly controlled approach to defining GB boundaries that the

Councils have taken in preparing this Plan.

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Has the Council’s review of GB boundaries been undertaken as a strategic exercise

which takes account of the need to provide sustainable patterns of development?

35. The review of GB boundaries has been carried out over a number of years. The process began in 2005 as part of the preparation for the South West RSS.

The emerging RSS strategy was to concentrate growth on a number of Principal Urban Areas of which the Bournemouth/Poole Joint Study Area (JSA),

which includes the Plan area, was one. Whilst the RSS was never adopted, work undertaken to examine growth prospects for Bournemouth/Poole has informed the Plan and the concept of focussing growth in this part of the

region remains evident through initiatives such as the Bournemouth and Poole City Region Deal.

36. The 2005 South East Dorset Strategy (SED) includes a review of the South East Dorset GB. As well as identifying settlements whose separate identity is protected by the GB and key gaps in the GB, it also identifies those gaps which

are narrow and where prevention of further erosion is critical. It considers the success of the GB in safeguarding the countryside from encroachment by

mapping tranquil areas and light pollution and assesses the role that the GB plays in providing a countryside setting for historic towns, villages and

settlements.

37. The process of GB review that began in 2005 has been taken forward through a number of housing options masterplan reports, which identify the best

locations for housing in the areas of search which flow from the 2005 exercise. Housing sites that have been added to the Plan at a later stage in its

development, such as the housing site at Burton which was identified during preparation of the Plan, have also been subject to an assessment of their impact on the GB. Furthermore in relation to employment sites, the 2005

review is carried forward through the 2010 East Dorset Employment Land Key Issue Paper.

38. The exceptional circumstances to justify changes to the GB at Bournemouth Airport, to support economic growth and flexibility for improving the airport’s operational facilities, flow from early work on the RSS, the Bournemouth

Airport Master Plan and ongoing work on the Bournemouth and Poole City Region – City Deal. Furthermore the removal of land at Bournemouth Airport

from the GB is mitigated by a zoning approach which seeks to avoid adverse impact on the adjoining land in the GB. With regard to Bournemouth Airport, the Councils have proposed modifications to the explanatory text, MM20 and

MM21, which I agree should be made to provide a summary of the exceptional circumstances and to clarify the zoning approach.

39. The review of the GB has been a lengthy process and criticisms that the supporting evidence is fragmented and piecemeal are well founded. However this does not mean that the review has been inadequate or inconsistent with

national guidance. Taken as a whole, the evidence demonstrates that the GB review is underpinned by analysis of the five GB purposes and by the need to

promote sustainable patterns of development. Therefore I am satisfied that the Plan is supported by an appropriate strategic review of GB boundaries.

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40. Paragraph 85 of the NPPF requires GB boundaries to be clearly defined, using physical features which are readily recognisable and likely to be permanent.

However the allocation maps are largely indicative and do not provide certainty or re-assure those concerned at the loss of GB that it has been kept to the absolute minimum to allow the proposed development. For this reason

the Plan should include more detailed maps to illustrate the exact GB boundary changes that are proposed. Amended allocation maps should

therefore be added through MM15, MM19, MM23, MM26, MM27, MM28, MM31, MM33, MM36, MM38, MM39, MM40, MM43 and MM45.

41. Subject to the above modifications the Councils’ approach to the review of GB

boundaries is justified and consistent with the NPPF.

Is the settlement hierarchy justified by robust evidence?

42. Strategic Policy KS1 identifies settlement types and summarises the role they will play in accommodating development. It is based on a series of Area Profiles and transport studies which examine the character and functioning of

the settlements, their accessibility and their relationship to adjacent settlements. The designation and function of some settlements has been

questioned.

43. It has been argued that Burton should be designated as a rural service centre.

However Burton is located close to the main settlement of Christchurch on which it relies for shops and services. It has an essentially village character and much of the village lies within a conservation area. On this basis Burton’s

designation as a village is justified and appropriate.

44. Wimborne and Colehill are neighbouring settlements and some local residents

have suggested that they should be treated as a single main settlement. The Councils’ Area Profile examines the two together and recognises their close relationship. However it also notes that each settlement has a distinct identity

and draws attention to the important narrow GB gap that provides physical separation between them. The allocation of housing site WMC6, south of

Leigh Road, extends Wimborne eastwards, but the redefined GB boundary retains sports pitches within the GB and maintains this gap. In these circumstances it is justified to retain the distinction as two separate

settlements.

45. Concerns have been raised that development in hamlets is strictly restrained

and does not allow for minor infill. The Council has clarified that settlements defined as hamlets are of such a small scale that they effectively form part of the open countryside, with many located in the GB and/or the Cranborne

Chase and West Wiltshire Downs Area of Outstanding Natural Beauty (AONB). It is therefore clear that strictly restraining development in the hamlets is

justified. In conclusion, therefore, the settlement hierarchy in Policy KS2 is soundly based on robust evidence.

Issue 2 – Does the Plan seek to meet the full, objectively assessed need

for housing?

46. The Plan sets a target of approximately 8200 new homes to be provided

across the area between 2013 and 2028.

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Is setting a combined target for the two Local Authority Areas justified and appropriate?

47. Both Councils are part of the South East Dorset SHMA and the Plan proposes a combined target for the two authorities. This approach has been criticised for a number of reasons, including the view that separate targets are necessary to

ensure that delivery does not come forward more within one district than the other and concerns regarding local accountability.

48. However the NPPF encourages co-operation and advises local planning authorities to work together to meet development requirements that cannot be met within their own area. Christchurch and East Dorset differ in character

and this affects the nature of the housing supply in each area. For example the proportion of new housing that will be delivered through the strategic

allocations, rather than in the urban area, is higher in East Dorset than in Christchurch. Should housing supply in one local authority area fall behind the trajectory, the combined target will allow the requirement for a five year

housing land supply to be considered across both areas. This flexibility will help to ensure that managing development in both areas continues to be

supported by an up to date local plan and thereby helps to avoid planning by appeal. On this basis the combined housing target is consistent with national

planning policy and ensures that the Plan is robust and has flexibility to adapt to changing circumstances. Explanatory text, set out in MM5(C), should be added to the Plan to clarify this approach and explain why a single target has

been used.

Does the Plan address the full objectively assessed need for market and affordable

housing?

49. The 2011 Bournemouth and Poole SHMA Update was published in 2012 and has been used to inform the evidence base for recently adopted plans in

adjacent local authority areas. It tests three methodologies to assess households across the whole of Dorset for the period 2011-2031. The SHMA

concludes that the soundest basis on which to base housing delivery is a projection based on the application of ONS/CLG population and household change rates from the 2008-based projections to updated baseline information

for mid 2011. This methodology was selected because the 2008 based trends would have missed out on the impact of the economic downturn and would

therefore provide a better basis for longer term projections.

50. The SHMA sets out projected household change for individual local authority areas in the Bournemouth and Poole Housing Market Area. The Christchurch

and East Dorset projections combine to give an annual household growth of 555 dwellings, resulting in a figure for the 15 year plan period of 8325.

51. Paragraph 4.18 of the Plan refers to the Dorset County Council (DCC) household projections based on 2011 census data. These identify a need for 7500 new market and affordable homes in Christchurch and East Dorset

between 2013 and 2028. However these projections should be treated with caution as they are lower than predicted due to short term factors and do not

take account of suppressed demand. They represent a snapshot after a period of severe housing market volatility. For clarity and consistency this reference should be removed through modification MM5(A).

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52. Thus the target of 8,200 new homes, whilst exceeding the 2011 census based figures, is lower than the more robust SHMA projections. None of the

evidence submitted provides good reasons why the housing target should not equate to the figure of 8,325 identified in the SHMA, together with a small allowance for vacant properties which the SHMA recommends in order to

convert the figure into a housing requirement.

53. The SHMA recommends a vacancy allowance in the range of 2-3%. Whilst the

Councils have provided evidence to show that vacancy rates average 1%, it has also been argued that some allowance should be made for second homes. Evidence based on Council Tax records shows an average of 1.6% of all

dwellings as second homes, but this derives from significantly different rates with 3.1% in Christchurch and 0.7% in East Dorset. On balance I conclude

that a pragmatic approach is appropriate, with an allowance of 2% to allow for vacancy and second homes. This leads to an overall target of 8491.5, which has been rounded to 8490 as set out in modification MM6.

54. The Councils are working with the other Dorset authorities to prepare a Gypsy, Travellers and Travelling Showpeople Sites Development Plan Document

(GTTDPD). This will identify need and allocate sites across the county. However Policy LN5 lists criteria for the location of gypsy and traveller sites,

creating some confusion about where the responsibility for allocating these sites lies. Modifications are needed to update the information relating to need, to ensure consistency with the emerging GTTDPD and to clarify that the

criteria in Policy LN5 are for consideration of planning applications rather than for allocating sites. These changes, as set out in MM58 and MM59, should be

made to ensure that the Plan is clear and effective.

55. Subject to the above changes and to clarification that the RSS is now revoked and removal of reference to the 2012 household projections through

modification MM10, I am satisfied that the Plan addresses the full objectively assessed need for housing and is consistent with national policies.

Issue 3 – Are the locations for the strategic housing allocations justified by robust evidence?

56. Objective 5 of the Plan is to provide sufficient housing to reduce local needs.

However this has to be achieved in the context of an area which is tightly constrained by a range of environmental factors. Consideration of the GB has

been included in the search, with the GB boundary review taking account of designated landscapes, heritage assets, European and international nature conservation designations, landscape character and flood risk.

57. As discussed above in relation to the GB boundary review, the Plan has been informed by early work undertaken to accommodate the growth envisioned in

the RSS. The SED identified sites in East Dorset and an urban extension at Roeshot Hill, Christchurch. These are taken forward in the Plan as New Neighbourhoods. Other sites have come forward during the development of

the Plan through consultation and further review. It is clear that all have continued to be assessed in the light of the environmental constraints referred

to above and all have been subject to consultation and sustainability appraisal.

58. In addition to the GB, the Councils have identified that potential major

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“showstoppers” to delivering the level of housing required to meet identified need are flood risk and international nature conservation designations. Thus a

more detailed examination of these factors is necessary in order to ensure that the strategic allocations for housing development are soundly based and deliverable.

Does the Plan’s identification of strategic housing sites take account of flood risk?

59. The site selection process has been informed by a level 1 Strategic Flood Risk

Assessment (SFRA) which was carried out in 2008. In Christchurch, where many of the sites considered for housing were in Flood Zones (FZ) 2 and 3, a level 2 SFRA was prepared to inform the sequential approach to site selection.

However in East Dorset the sequential test has been applied and the areas of search were focused on land in FZ 1. A level 2 SFRA was therefore not

required for the East Dorset area.

60. In relation to the East Dorset New Neighbourhoods it is clear that flood risk has continued to be considered as demonstrated, for example, in the East

Dorset Housing Options Masterplan Report (OMP) 2010. Concerns have been raised that the site allocation at West Parley (FWP7), particularly the proposed

link road, would be subject to flood risk. Whilst the site lies within FZ 1, the associated link road would be immediately adjacent to the flood plain.

However the Council has reported that this matter has been discussed with Environment Agency and is not considered to be a barrier to development. Furthermore Natural England has confirmed that locating the SANG outside FZ

1 is acceptable as the purpose of the SANG would not be undermined by flooding. These factors, together with the detail set out in the OMP which

assesses surface water attenuation volumes, leads me to conclude that flood risk has been properly taken into account in the FWP7 allocation.

61. Some allocations in East Dorset, such as the Cuthbury Allotments site, include

small areas which lie within FZs 2 and 3 and I note that local residents in particular are extremely concerned that development in some of the New

Neighbourhoods could cause flooding or increase flooding in areas which have already suffered badly. However Policy ME6 sets out a robust strategy for flood management, mitigation and defence, requiring all developments to

demonstrate that flood risk does not increase as a result of the development proposed and restricting of surface water run-off to pre development levels.

62. On this basis I am satisfied that the site allocations in East Dorset direct development away from areas at highest risk. Furthermore there is no evidence to indicate that the quantity of development proposed for the

strategic allocations will be reduced as a result of any flood mitigation or defence which will be required through Policy ME6.

63. In Christchurch a level 2 SFRA was undertaken in 2009. This takes account of the impact of climate change and the extent of the floodplain as predicted in 2126. The 2010 Masterplan Context Report for the Christchurch Urban

Extension (CUE) addresses flood risk and proposes locations for surface water storage. The 2011 Masterplan Report takes this forward, recognising that

development on land in FZ2 is restricted to certain uses and identifying a small pocket of land in FZ3a which should remain undeveloped. It also identifies the need for a 15 metre buffer either side of the River Mude. Policy CN1 requires

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land to be identified for surface water storage and I am satisfied that this, together with the requirements of Policy ME6, provides a robust framework for

delivering this allocation without adding to flood risk in the surrounding area.

64. The housing allocation to the south of Burton village is part of a site identified through a sequential site search undertaken in 2010. The level 2 SFRA shows

most of the site in FZ1 but with an area in FZ 3. The potential developer has undertaken a site specific flood risk assessment which establishes that the site

can be developed subject to detailed design and the provision of flood compensation areas and drainage ditches. The number of dwellings has been reduced from the original 60 to the 45 dwellings now proposed to restrict

dwellings to FZ1 and allow sufficient land for flood management.

65. I recognise that there are serious concerns regarding flooding in and around

Burton and note that Stoney Lane has frequently flooded in recent years. However site access is proposed from Salisbury Road to avoid areas at risk of flooding. This, together with criteria set out in Policies CN2 and ME6 provides

a satisfactory framework for the proposed allocation with regard to flood risk.

66. In conclusion, the strategic housing allocations are supported by appropriate

SFRA and are based on a sequential, risk based approach to locating housing sites in order to avoid both flood risk and increased vulnerability from the

impacts of climate change. It has been demonstrated that all of the allocations have the capacity to provide any necessary flood management and mitigation as part of the development.

Do the locations for strategic housing allocations take account of the need to protect European and international nature conservation designations?

67. Policy ME2 sets out the key criteria for protecting the Dorset Heathlands. It reflects Natural England’s advice that no residential development should be permitted within 400 metres of European and internationally protected

heathlands. It also sets out the requirement for mitigation measures where residential development is located between 400 metres and 5 kilometres of

such areas. This policy, which is consistent with the South East Dorset Heathlands Planning Framework Supplementary Planning Document (DHPFSPD), has informed the location of the strategic housing allocations.

68. During the examination the capability of these allocations to provide SANG has been considered in detail. Where appropriate the maps which accompany the

allocations illustrate the location of SANG and the deliverability and adequacy of the SANGs has been clarified through statements of common ground and tested to ensure land availability and deliverability. On this basis I am

satisfied that the strategic residential allocations take account of the need to protect European and internationally designated Heathlands.

69. In conclusion, in addition to a strategic review of GB boundaries, the location of strategic housing allocations is based on a robust analysis of all the relevant environmental constraints, including detailed consideration of flood risk and

the need to protect European and internationally designated sites.

Issue 4 –Does the Plan provide for managed delivery of development to

meet the housing target, including the identification of a five year supply of housing land?

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Can the housing target be met through delivery of the New Neighbourhoods and sites identified in the SHLAAs?

70. The Plan proposes that the housing target will be delivered by a combination of strategic allocations and sites identified in the SHLAAs. During the course of the examination the number of dwellings to be provided on some of the

strategic allocations has been amended. As a result of further discussions with the developers during the examination the number of new dwellings to be

provided on allocation FWP3: Holmwood House New Neighbourhood has increased from 110 to 150 and the number on allocation FWP4: Coppins New Neighbourhood has increased from 30 to 40. Modifications MM30 and MM32

are required to update the Plan in this respect.

71. However the anticipated number of dwellings that allocation FWP7: West of

New Road West Parley New Neighbourhood can deliver should be reduced from 200 to 150 in order to take account of concerns that have been raised over the impact of development on Dudsbury Camp Ancient Monument. This

change is made through modification MM37 which also introduces requirements to control the construction of the associated link road to avoid

harm to the Ancient Monument. English Heritage still has outstanding concerns about the location and impact of this road, but these can be

addressed satisfactorily by additional modifications which are outside the scope of this report and through the planning application process. No further changes are needed to ensure that the Plan is sound in this respect and there

is no compelling evidence to support a further reduction in the number of dwellings to be delivered on FWP7.

72. In Christchurch updating of masterplanning and delivery information has led to phasing for the CUE being extended from 9 years to 10 and this is indicated on the housing trajectory. Changes MM13, MM14 and MM16 are required to

correct the period of development, ensuring accuracy and consistency.

73. The methodology used in the Councils’ SHLAAs has been agreed across South

East Dorset. The SHLAAs are thorough documents which drive down to a level of detail to include assessment of very small sites, providing a high level of certainty and reducing the likelihood that unidentified windfalls will come

forward. The updating and review of the SHLAA sites has resulted in an increase in the number of homes expected to come forward in the urban area.

Updated figures for the number of dwellings to be delivered on sites in the urban area should be added to paragraph 4.19 and 6.10 of the Plan through modifications MM5(B) and MM11.

74. Based on this updated information the Councils recalculated the housing supply during the examination. A revised supply of 8,386 dwellings was

identified (set out in the Councils document FD1.1: Combined Housing Supply as updated September 2013 v2). This falls short of the amended housing target of 8490 dwellings and leads to the question of whether any further sites

are capable of contributing to the housing supply.

Could any of the omission sites make a sustainable contribution to the housing

supply?

75. A number of alternative sites for housing development have been put forward

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by representors and were discussed during the examination. The majority of these sites had already been considered by the Councils during preparation of

the Plan but had been omitted for reasons including their effect on the GB, on landscape character or gaps between settlements, the inability to provide adequate SANG or failure to demonstrate that they would represent

sustainable forms of development. I have carefully considered the merits of each of these sites but in all but one case have found no evidence to outweigh

the Councils’ view that their inclusion in the Plan would not be soundly based.

76. However there are strong reasons to include in the Plan a single site, VTSW5: North Eastern Verwood. This allocation was included in the 2012 Core

Strategy Pre-Submission Consultation but removed from the submitted Plan because adequate SANG could not be delivered. Shortly before the Plan was

submitted for examination the issue of SANG was resolved, but the Council decided to leave the decision as to whether to re-insert this site into the Plan to be considered at the examination.

77. This site was assessed after being put forward during public consultation on the emerging Plan in January 2011. A 2012 baseline report drew attention to

the fact that whilst it was in the GB the woodland to the north of the site would make a defensible GB boundary and an edge to the urban area. The

site is in FZ1, access can be provided from Ringwood Road and it has now been demonstrated that appropriate SANG can be provided within the site. It has been subject to sustainability appraisal and consultation.

78. A number of concerns have been raised in relation to this allocation, especially with regard to access and flood risk. The Councils have made it clear that a

new, safe access together with speed management measures is currently being negotiated through the development management process in relation to an outline planning application for the site. The site’s location in FZ1 means

that it is at low risk of flooding. However Policy ME6 provides a robust framework to ensure that the development does not increase flood risk or an

increase in surface water run-off. This matter can be satisfactorily addressed through the development management process.

79. Concerns have been raised by the potential developer regarding the site

layout, proportion of open space and the percentage of affordable housing required through new Policy VTSW5 and other policies in the Plan. However

the allocation is sufficiently flexible to allow negotiation of design and layout through the development management process. The Plan requires up to 50% affordable housing to be provided on all greenfield sites. Affordable housing is

discussed in detail later in this report, but I can find no justification to make an exception for this particular site. In these circumstances, having regard to

the fact that the site can boost housing delivery by contributing 65 dwellings to the housing supply in the early years of the Plan period and that the Councils’ sole reason for removing it from the submitted Plan is now resolved,

this site should be added to the Plan as set out in MM41 and MM42.

Does the Plan provide a sound basis for managing and monitoring housing

delivery?

80. The Plan provides no clear strategy for managing housing delivery and the housing trajectory has been superseded by work carried out during the

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examination. Consequently the Plan should be amended to include up to date and detailed information to demonstrate how the housing target will be met.

The Councils propose modification MM66 to introduce a new Appendix which will illustrate predicted housing delivery through the Plan period.

81. Paragraph 47 of the NPPF requires local planning authorities to identify and

update annually a supply of specific deliverable sites to provide five years housing, with a buffer of 5% to provide choice and competition in the market

for land. In areas where there has been persistent under delivery this buffer is increased to 20%.

82. In this case Annual Monitoring Reports demonstrate that both Councils have

delivered more housing than the target in the 1994 – 2011 Structure Plan. On this basis the Councils have planned appropriately with a 5% buffer. Table 1

of the new Appendix identifies the sites that are capable of delivering housing in the first five years of the Plan, whilst Table 2 sets out predicted annual delivery through the Plan period and feeds into the Housing Trajectory. The

addition of this information illustrates the rate of housing delivery throughout the Plan period, demonstrates the composition of the supply and identifies a

five year supply of housing sites. It provides a robust basis for monitoring and ensures that the Plan is effective.

Issue 5 – Is the Plan’s strategy for securing affordable housing sound?

Are the percentages set out in Policy LN3 justified?

83. The Plan recognises that affordable housing need exceeds the total housing

supply and Strategic Objective 4 aspires to deliver an overall percentage of 35% of all new housing as affordable in order to make some contribution to

meeting this need. Policy LN3 sets out requirements of up to 50% of affordable housing on greenfield sites and up to 40% on all other residential development.

84. These percentages flow from viability studies undertaken in 2010, based on the Three Dragons methodology. These studies found that a 50% affordable

housing requirement would be viable in the higher value areas of both East Dorset and Christchurch. In seeking to optimise the delivery of affordable housing the Councils have based the policy on this study. The 50%

requirement is tempered by the fact that there is flexibility in the wording (which states “up to”) and that it will be supported by clear negotiation and

viability assessment procedures to be set out in the emerging Housing and Affordable Housing Supplementary Planning Document (SPD). This SPD has been the subject of consultation and is expected to be adopted after the

adoption of this Plan.

85. Several developers have challenged this in relation to the East Dorset sites, on

the basis of their own calculations, arguments that the market was stronger when the 2010 study was undertaken and that it took account of grant funding which is no longer available. Reference is also made to later viability studies

carried out in 2012 and 2013. I have carefully considered all of these arguments, as well as the suggestion that percentages should reflect property

market areas rather than set a greenfield/ brownfield differential.

86. The 2012 and 2013 studies appear to conflate assessment of affordable

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housing with assumptions that there will be a lower percentage of affordable housing in East Dorset and/ or a CIL charge of £100 per square metre. The

2012 Viability Overview Report for East Dorset New Neighbourhoods (the Whiteleaf Study) applies an assumption of 40% affordable housing whilst the 2013 CIL Viability Testing for East Dorset assumes 30% affordable housing.

87. The Councils proposed CIL rate has not yet been the subject of an examination and so the assumed level of £100 per square metre is not confirmed. The

Government’s Community Infrastructure Levy Guidance, dated April 2013, states at paragraph 29 that in proposing a levy rate charging authorities should take into account other development costs, including taking account of

planning obligations in the relevant Plan, in particular those for affordable housing (my emphasis). This makes it clear that it is not appropriate to

undertake a balancing act between CIL and affordable housing, as appears to have taken place in the Whiteleaf Study, and that the CIL should be assessed on the basis of the level of affordable housing in the local plan.

88. The greenfield/ brownfield differential is based not only on the capacity of most greenfield sites to deliver more affordable housing due to lower site

development costs, but also that in general the release of greenfield land, which is in many cases GB land, is linked with providing sustainable mixed

communities. Maximising delivery of affordable housing on these sites is therefore key to balancing the tension between Objectives 1 and 5 of the Plan.

89. The Council’s reasoning to support the 50% requirement is based on robust

evidence in the 2010 studies and allows for flexibility with a process for assessment and negotiation set out in the SPD. On this basis the target for

50% affordable housing is justified and consistent with the evidence of need and with paragraph 47 of the NPPF.

90. Viability assessment for the CUE has been undertaken as part of the master

planning work for this site. It takes account of exceptional infrastructure costs associated with delivering this site and demonstrates that 35% affordable

housing can be supported. However Policy CN1 retains a reference to the need to maximise affordable housing provision in accordance with Policy LN3. This approach is justified by the viability evidence and provides an effective

framework for delivering affordable housing through the CUE.

Does the requirement for all sites, including very small sites to make provision for

affordable housing present a potential risk to housing delivery?

91. The Delivery Requirements of Policy LN3 make it clear that all residential development must contribute to the provision of affordable housing, but allows

for financial contributions in lieu of on site provision on sites for 1-4 dwellings and in some cases those for 5–14 dwellings. Small sites made a significant

contribution to housing delivery in recent years and this is expected to continue. Contributions from these sites therefore play a significant role in providing affordable housing. Furthermore it is recognised that a threshold

below which no contribution is required sets an artificial barrier which can allow affordable housing policies to be circumnavigated.

92. I have taken account of the views submitted by those involved in bringing forward small sites, especially the argument that this policy could drive

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development across local authority borders. However I note that several local authorities in Dorset and Hampshire have imposed lower thresholds to address

the high level of housing need and large numbers of small scale developments, whilst some have set zero thresholds similar to Policy LN3. When taken together with the provision for individual site viability adjustments to be made

I am satisfied that the requirements of Policy LN3 are justified and effective.

Issue 6 – Does the economic strategy plan positively to meet the

employment needs of the area?

Is the strategy for delivering employment land based on robust evidence?

93. The Plan area falls within the Bournemouth and Poole Strategically Significant

City and Town (SSCT), where Bournemouth and Poole provide the focus for office development and Poole is the sub market area for industrial

development. The Plan’s approach to economic development is based on the shared evidence base in the 2012 Bournemouth, Dorset and Poole Workspace Study (WS), which examines the need for employment land in the SSCT in the

period 2011 -2031. It updates the findings of the earlier Bournemouth Dorset Poole Workspace Strategy and Delivery Plan (2008) (WSDP).

94. Both of these studies examine the wider sub region of which Christchurch and East Dorset forms a part and the WS follows the broad methodology used by

the WSDP. The WS reflects a number of changes to bring the evidence base up to date. In particular it considers allowances of 10% and 20% to provide flexibility for changing economic circumstances across the period. It includes

updated employment and economic projections and updated employment densities and takes account of changes to industrial sectors and definitions in

the 2007 Standard Industrial Classification codes.

95. The WS expects that whilst the level of employment land supply may not be met in a single district or borough, it will be met across the whole SSCT area.

The Plan therefore seeks to provide a supporting role in delivering industrial development and a proportion of office development. Policy KS5 proposes to

identify 80 hectares of employment land, to take account of a shortage of employment land in Bournemouth.

96. It is argued that although the WS represents a Stage 1 Employment Land

Review (ELR), Stages 2 and 3 of the ELR, as set out in the Government’s ELR Guidance Note 2004, have not been undertaken. This guidance note was

cancelled on the launch of the Government’s Planning Practice Guidance (PPG) on 6 March 2014, but it has informed preparation of the Plan.

97. The evidence on employment land is fragmented and in some areas

incomplete, making it difficult to follow a logical progression that leads to Policy KS5. Furthermore much of the evidence is based on cross boundary

working and covers an area much wider than the area covered by this Plan. However paragraph 2.37 of the ELR Guidance points out that the three stage approach formalises what in practice is likely to be an iterative approach to

reviewing the need for allocation of land for employment purposes.

98. In this case the background evidence taken as a whole addresses the three

stages of ELR. For example the WSDP includes a review of existing employment land forecasts and a summary of district level demand and

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supply. It also includes a detailed assessment of key sites and recommends that larger scale office developments be focussed on the town centres of

Bournemouth and Poole.

99. When considered in the context of the latest guidance, it is clear that the background evidence is broadly in alignment with the scope and methodology

for assessing economic development and the need to forecast quantitative and qualitative need, as set out in the newly launched PPG.

Are the strategic employment allocations justified and deliverable?

100. Attention has been drawn to the 2007 Christchurch and East Dorset Employment Land Review Stage 1 Report (2007 ELR) which refers to a

shortage of employment land in the Plan area to meet demand. In particular it refers to uncertainly or delay of delivery at Bournemouth Airport and Blunts

Farm and it has been argued that these allocations cannot therefore be relied upon to deliver employment growth. However a significant amount of work has been carried out since the 2007 ELR was undertaken. Not only does the

up to date evidence broaden the study to the wider SSCT, but evidence has been updated through the WS and added to support the deliverability of these

sites.

101. The three East Dorset employment land allocations at Blunts Farm,

Woolsbridge Industrial Estate and Bailie Gate all lie adjacent to existing employment sites and are in sustainable and accessible locations. It has been suggested that Blunts Farm is not capable of delivering the anticipated 30

hectares of employment land due to the presence of a Site of Nature Conservation Interest (SNCI) at the northern tip of the site and other

constraints, including the site’s awkward shape. Furthermore it has been pointed out that in the WS the phasing of development on Blunts Farm is shown as extending beyond the Plan period.

102. The Councils recognise the need to protect the SNCI and exclude it from the area to be developed and accept that the site may very well provide less than

the 30 hectares hoped for. However they expect Blunts Farm to come forward within 5 years. Furthermore they have demonstrated that there is an identified supply of 86.3 hectares in the Plan area within the SSCT, which

would exceed the Plan’s target of 80 hectares and a supply of 184 hectares across the whole of the SSCT, exceeding the demand of 173.2 hectares. In

these circumstances it is clear that the needs of the SSCT as a whole will be met and therefore there is room for some flexibility in this Plan. The likelihood that the Plan and those of adjacent authorities will fail to deliver adequate

quantity or quality of employment land is remote and certainly does not justify further incursion into the GB at this stage.

103. The Plan includes two maps to illustrate the distribution of employment sites in the Plan area. A modification (MM7) is required to ensure accuracy by updating the distribution of employment land in Christchurch.

104. Policy PC1 of the Plan seeks to influence the location of employment uses across the Plan area. The Council proposes a modification to add two sites to

the list of “Other Higher Quality Sites” category and I agree that this change, MM61, should be made to ensure that the Plan is up to date and effective.

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105. Subject to these changes the strategic employment sites are sustainable, deliverable and together with the identified sites in the urban area and the

employment hierarchy in Policy PC1 are sufficient to meet the quantitative and qualitative need for employment land.

Is the strategy for the operational airport and the strategic employment allocation

at Bournemouth Airport soundly justified and effective?

106. In proposing the removal of land from the GB at Bournemouth Airport the Plan

sets out a zoning approach. The largest zone, which includes the runways and taxiways, would remain largely free from development. Policy BA2 sets out the types of development which will be permitted on the operational airport

and on the 30 hectares of new employment development which is planned across the north west and north east business parks during the Plan period.

107. It has been argued that the inclusion of financial and business services in the list of sectors which may come forward on the business parks could affect vitality and viability of office development and the wider economy in

Bournemouth and Poole. However this represents one of a wide range of uses proposed in Policy BA2 and is likely to be ancillary to a larger industrial use. It

is clear that the scale of office use is likely to be modest and certainly not one that would undermine office development in Poole and Bournemouth centres.

108. Access to the airport is from Parley Lane and the Master Plan acknowledges congestion related problems. Policy KS10 of the Plan identifies improvements which are needed to address congestion and support growth of the airport and

the business parks. The Councils have provided information to illustrate the sources of funding including the Dorset Local Transport Body Local Growth

Fund, DCC corporate funding and developer contributions already committed by the Airport and through employment land development at Aviation Business Park. There is also potential to bid for City Deal Funding, Government

Maintenance Funding (under which a bid could be made to fund A338 improvements) and funding in association with future development on the

airport business parks which will come through Section 38 and Section 106 agreements and through CIL. Thus, whilst it has been argued that the expansion of the airport relies on highway improvements which are not

deliverable due to a lack of funding, the Councils have demonstrated that necessary transport improvements can be delivered over the plan period.

109. Attention has been drawn to a site owned by National Air Traffic Services (NATS) which, whilst currently in the GB, lies in the area which is proposed as Zone B in Policy BA3. The zoning approach will restrict any development on

this site to operational airport uses. The site is a brownfield site which is now vacant and therefore available for alternative uses. However it is physically

associated with the airport, adjacent to airport buildings and remote from the business park where there is a supply of employment land to last beyond the Plan period. In these circumstances there is no justification for excluding it

from the Zone B criteria.

110. It has been argued that 30 hectares of land situated to the east of the airport

access road and the main terminal building and to the north of Parley Lane should also be allocated for employment and airport related uses. Part of this land, which is used for airport parking, is proposed to be removed from the GB

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and classed as Zone A, which Policy BA3 restricts to car parking, in order to retain the predominantly open aspect. The remainder of the area is in

agricultural use and in the GB. However there is no evidence to demonstrate a need for additional employment or operational airport land to demonstrate exceptional circumstances to justify removal of this land from the GB.

111. It has been suggested that this land could also accommodate the transport hub which is set out in the Local Transport Plan and could facilitate highway

improvements. However information provided by the Highway Authority confirms that the hub can be provided on land within the airport.

112. In these circumstances the vision and proposals for employment and airport

growth as set out in Policies BA1 and BA2 are justified and effective.

Is there justification for the inclusion of additional employment allocations in the

Plan?

113. I have carefully considered additional sites that have been proposed for employment use at Stourbank Nurseries and Little Canford Depot. These sites

lie in an area of open countryside and do not adjoin the urban area but are within the GB gap between Wimborne and the Bournemouth and Poole

conurbation to the south. Site analysis in the Councils’ 2010 East Dorset Employment Land Key Issues paper found that development here would have

a significant effect on the openness of the area. I agree and consider that allocating these sites would be harmful to the character of the area and inconsistent with national planning guidance.

114. I have carefully considered all the proposed alternative sites but find no justification for their allocation as strategic allocations.

Does the Plan provide an appropriate strategy for economic growth in the rural area?

115. The Plan recognises that the rural economy makes an important contribution

to the economy of the Plan area, particularly in East Dorset. Policy PC3, whilst stating that economic development will be strictly controlled in the open

countryside, states that it will be encouraged in or on the edge of existing settlements where it can be closely related to housing, services and other facilities. The policy lists a number of villages, which gives the impression that

the policy relates to the named villages rather than any settlements that meet the criteria of the policy. To address this issue the Council has suggested

removing reference to named locations and I agree that this change, in MM62, is needed to clarify the policy and make sure that it is effective.

Issue 7 – Does the Plan set out an effective strategy for protecting the

natural environment?

116. Section 13 of the Plan sets out policies for managing the natural environment

and paragraph 13.8 lists the evidence that underpins these policies. Modification MM46 is required to ensure that the purpose and title of the DHPFSPD is referred to accurately.

Is the approach to safeguarding biodiversity and geodiversity effective?

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117. It has been argued that the criteria to be addressed when development is proposed, as set out in Policy ME1: Safeguarding biodiversity and geodiversity

are incomplete as they omit a definitive requirement for mitigation. I agree that to ensure that the policy is effective it should include light pollution within the criterion seeking to avoid harm to existing priority habitats and species,

and the requirement for mitigation or compensation where harm is identified should be strengthened. These changes should be made through MM47.

Does Policy ME2 provide a robust basis for the protection of the Dorset Heathlands?

118. Natural England has advised that residential development should not be

permitted within 400 metres of designated Heathlands and this is clearly stated in Policy ME2: Protection of Dorset Heathlands. In dealing with

development which lies between 400 metres and 5 kilometres of designated Heathlands, the South East Dorset Authorities together with Natural England have prepared the DHPFSPD, a joint framework for Heathland mitigation which

includes the provision of SANG. Modifications MM48 and MM63 are required to clarify the background to Policy ME2, correct cross reference to the

DHPFSPD and to explain the status of SANG. A further modification (MM2) should be made to ensure that Objective 1 of the Plan, which addresses the

natural environment, is accurate in its reference to mitigating the effects of residential development on designated Heathland.

119. Additional information about the approach to SANG had been provided by the

Dorset Heathlands Joint DPD, but the South East Dorset authorities have decided not to progress this document. The Councils therefore proposed to

provide further detail about their approach to mitigation in the forthcoming Site Specific Allocations DPD. This approach is clarified in modification MM49A. Policy ME2 also refers to the types of mitigation that can be

provided. To avoid confusion this should be modified to clarify that SANG can be delivered either on or off site and distinguish between SANG and other

appropriate avoidance/ mitigation. These changes, in MM49B, are needed to prevent confusion and to ensure that this section is effective and consistent with the rest of the Policy as discussed in the following paragraph.

120. The strategy for securing Heathland mitigation as set out in the last three paragraphs of Policy ME2 is currently vague and unclear. The reference to

proposals of approximately 50 dwellings is confusing, whilst there is a risk of developers having to contribute twice through the provision of on site mitigation and payments through CIL, part of which will be directed to as yet

unidentified mitigation projects. These are valid concerns and the Councils have proposed amended wording. Modification MM49C is needed to remove

reference to proposals of about 50 dwellings and to clarify that the delivery of Heathland mitigation measures will be set out in the Councils’ Regulation 123 list. This will ensure that Heathland mitigation is not treated as a generic item

which would have prevented the funding of any site specific mitigation through section 106 contributions. The Councils have stated that Heathland mitigation

will be the first priority on the CIL regulation 123 list and that this will cover enabling strategic sites as well as mitigating small sites.

121. These changes do not in themselves resolve the situation where developers

who provide on site mitigation in the form of SANG will also have to pay CIL

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which will also fund mitigation projects. However they provide transparency so that developers can see the extent to which they will be contributing to

mitigation projects and allow scope for management and maintenance of on site SANG to be funded from CIL. This will provide a basis for developers to negotiate, provides for clear definition between the different funding sources

and ensures clarity and consistency with the CIL Regulations.

Are the local requirements and standards set out in Policies ME4, ME5 and ME8

justified and consistent with national guidance?

122. Policy ME4 sets out sustainable standards for new development whilst Policy ME5 seeks to encourage renewable energy provision for all new development.

The Plan makes it clear that these are flexible policies which seek to encourage sustainable forms of development and they are supported by a

robust local and national evidence base. Changes are required to both policies to ensure that they are consistent with national policy, to add reference to soil carbon issues to Policy ME4 and to clarify the proposed use of CIL in relation

to Policy ME5. Subject to these changes, in MM50 and MM51, both policies are soundly based and consistent with paragraph 95 of the NPPF.

123. Policy ME8 encourages the generation of energy from renewable and low carbon sources and sets out a number of criteria for proposals for renewable

energy apparatus. Some changes are necessary to ensure that the policy refers accurately to the AONB, is cross referenced to Policy ME1 and addresses the need for the cumulative impacts on the landscape, visual amenity and

biodiversity to be considered. Subject to these changes, set out in MM52, the policy is effective and consistent with national policy.

Issue 8 - Is the Plan underpinned by a robust framework for delivering the infrastructure that is necessary to support the strategy and does it include a robust framework for monitoring?

Is the Plan supported by up to date infrastructure planning?

124. The submitted Plan was accompanied by a draft Infrastructure Delivery Plan

(IDP) which, whilst listing a number of projects, did not make it clear which policies in the Plan they would support, contained sparse information on funding sources and did not address the issues of risk or contingency.

125. During the examination the Councils have updated and expanded the IDP and the December 2013 IDP addresses deficiencies in the draft version. It includes

updated information on costings and delivery partners, addresses risk and includes contingency measures where appropriate. It demonstrates that the Councils have worked across local authority boundaries and with infrastructure

providers to plan and secure funding for the infrastructure needed to support the Plan’s overall strategy. It demonstrates that there is a reasonable

prospect that the required infrastructure will be delivered in a timely fashion. Clarification of the updated transportation projects that have emerged from further work on infrastructure provision are required to ensure that the Plan is

effective. These should be made through modifications MM3, MM8 and MM9.

126. The strategic allocations have inevitably generated concerns about the

capacity of the highway network to cope with additional traffic. The Plan acknowledges that the proposed development will increase journeys in and

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around Christchurch and East Dorset, but states that there is little capacity available on main routes during peak periods and significant increases in

capacity are not feasible. However both the IDP and the Local Transport Plan include a range of projects that will mitigate the impact of additional traffic which the strategic site allocations will generate.

127. The LTP includes proposals to improve public transport and walking and cycling routes, whilst the IDP includes local and strategic schemes which are

programmed to support development. It is clear that Dorset County Council (DCC) has been involved in transport planning for the new neighbourhoods and the Council has worked with DCC in preparing the transport modelling for

the allocations at Parley Cross and Wimborne. In Christchurch the focus has been on improving junctions to the A35 and planning bus services to run

through the proposed urban extension. Development of proposals for the CUE has included dialogue with DCC and modelling, which was based on the original allocation of 900 dwellings but which has been recalculated to take

account of the updated 950 dwellings. In considering the impact of the CUE all movements in the Plan area and Bournemouth have been taken into

account, including those relating to gravel extraction.

128. The Core Strategy Vision refers to the objective of securing a by pass for

Christchurch as a solution to the town’s traffic problems. However attention has been drawn to environmental constraints which have not been explored and to the absence of Habitats Regulation Assessment for such a scheme. The

Council has therefore proposed a more flexible wording, as well as updating reference to the A31 improvements. These changes, set out in MM1, are

required for the Plan’s effectiveness.

Does the Plan provide a clear framework for monitoring delivery of its policies?

129. The submitted Plan deals with monitoring in a broad brush and inconsistent

way, with no defined targets and heavy reliance on the AMRs. To make the Plan effective the Councils have prepared a monitoring framework which sets

out clear indicators, targets and methodologies. This should be added, through MM64, as an appendix to the Plan.

Issue 9 – Does the Plan include effective policies for managing the historic

and natural environment and for providing community facilities and services?

Are Policies HE1 and HE3, which set out the approach to protecting the historic environment and landscape quality, consistent with national guidance?

130. Concerns have been raised relating to a range of issues in Policy HE1,

including detailed wording, the need to refer to specific heritage assets, to include reference to buildings at risk and the need to introduce a commitment

to ensure that infrastructure and public realm works will protect and enhance the historic environment. I agree that changes to address all of these matters, as set out in MM53, should be made to ensure that the Plan is

effective and consistent with national policies.

131. The detailed wording of Policy HE3 should be amended to set out a more

robust requirement for protection of the AONB and its setting. This change, MM54, should be made to ensure that the policy is effective.

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Are Policies HE4 and LN6 consistent with the CIL Regulations?

132. These policies set out the Plan’s strategy for providing open space and

community facilities. In both cases wording regarding the use of CIL is unclear and Policy HE4 refers to standards set out in an appendix which will be superseded by the CIL strategy. To provide a clear and effective strategy for

securing these facilities, changes MM55, MM60 and MM65 should be made.

Issue 10 – Whether in all other respects the Plan’s site allocations are

justified and effective?

133. Throughout the examination concerns have been raised about specific site allocations. Many of these matters have been dealt with in the above sections

where they relate to the overall strategic approach, for example to housing, flood risk, GB or the provision of SANG. Furthermore I have carefully

considered local residents’ concerns regarding the capacity of community infrastructure, such as health and education, and I consider that these are satisfactorily addressed through the Plan and its supporting documents such

as the IDP. However some site specific issues remain to be considered in the following paragraphs:

CN1: Christchurch Urban Extension – is the level of housing proposed justified and are there any barriers to delivery?

134. Understandably the increase in the number of dwellings to be delivered on the CUE from 600 in the RSS to the 950 now proposed has raised questions and concerns. However the evidence submitted by the Councils explains the way

in which the level of housing that can be delivered on the site has been assessed over several years, through the issues and options stage of the Plan

and through masterplanning. This demonstrates that the quantum of development proposed on this site is justified. The explanatory text to Policy CN1 incorrectly refers to 850 dwellings on this site and this should be

amended, through MM12, to ensure accuracy.

135. There are very strong feelings in the local community about need to relocate

Roeshot Hill Allotments in order to deliver development on this site. However the allotments are protected by legislation which will ensure their relocation. The Councils have engaged with the allotments association and negotiations

are ongoing to discuss suitable alternatives. Furthermore it has been confirmed that the developer has control of all the potential new allotment

sites. The Plan currently states that replacement allotments will be delivered north of the railway line but in order to provide flexibility this restriction should be removed through modification MM17. Subject to this change the Plan

provides for positive planning to secure appropriate replacement allotments.

136. Several other concerns relating to the deliverability of this allocation, including

the need to provide SANG and the need to fund undergrounding of power lines, have been assessed in detail through the examination hearings and in written evidence. It is clear that the Councils are working with all the relevant

stakeholders, including the community, the developer and adjacent local authorities to plan positively for the CUE. Having carefully considered all of

the matters raised I am satisfied that there are no insurmountable barriers to delivering this allocation,

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CN2: Land South of Burton Village – Is this allocation justified? Does it take appropriate account of heritage assets and the natural environment?

137. This allocation extends the village envelope and is adjacent to Burton Conservation Area. It strikes a balance between providing additional housing in Burton and retaining a substantial GB gap between the village and the edge

of Christchurch urban area. The expanded version of this site that is proposed by the potential developers, whilst providing more housing and increasing

potential for infrastructure provision, would make a more significant intrusion into the GB and would harm its openness. The alternative site adjacent to the railway, which has been suggested by the Parish Council, is separated from

the village by an open area of GB and would not be a sustainable extension.

138. The allocated site includes a listed barn which is not referred to in the policy

and Natural England has drawn attention to the need for an ecological survey to be undertaken prior to development. Both of these matters should be addressed through modification MM18 in order to ensure that the policy is

effective and consistent with national policy. For clarity, this modification also removes a now superfluous reference to phasing of development which is

better addressed through the housing trajectory.

WMC3: Cuthbury allotments – does the policy provide a flexible strategy to allow

for changing circumstances?

139. This site includes an area which is reserved for an extension to Victoria Hospital. The Councils have suggested that the policy should be amended to

clarify that if the hospital does not require this land it may be used for housing. Concerns have been raised that this could mean housing

development would take precedence over the extension of the hospital. However this is not the case as this area of the site is allocated for hospital use and only if not required by the hospital will it be considered for housing.

For this reason and to ensure flexibility I agree that MM22 should be made.

WMC4:Stone Lane – does the policy provide for appropriate flood prevention and

protection for the River Allen?

140. At the moment this policy omits a requirement for a sustainable drainage scheme which is needed to prevent flooding and protect the quality of the

adjacent river. As suggested by the Councils this should be added through modification MM24 to ensure that the Plan is effective.

WMC5: Cranborne Road – Is the transport and access section of this policy up to date and consistent with highway authority advice?

141. The Council has suggested that this policy should be amended to reflect up to

date advice from DCC and these changes, in MM25, should be made to ensure effectiveness.

Issue 11 - Consideration of other matters

Are other minor changes to the GB boundaries justified and consistent with national policy?

142. In addition to GB boundary changes that the Councils propose to allow

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delivery of the strategic allocations, the Plan includes a number of minor alterations to GB boundaries. Most of these relate to modest parcels of land

which, whilst not in the GB, were safeguarded from development in the local plan. Due to changed circumstances, such as the need to protect designated Heathland or evolving landscape character, they are no longer suitable for

development. One is a small open area which, whilst not safeguarded, is an important open space in recreational use which is linked to the GB. All of

these changes are justified and making them as part of the local plan process is consistent with guidance in the NPPF.

143. In addition to areas of land to be added to the GB, Policy VTSW8 (Blackfield

Farm) proposes removing the safeguarding notation for this site and placing it within the urban area. This site could not now be developed for housing as it

lies within 400 metres of protected Heathland. Concerns have been raised at the absence of information about wildlife on the site and it is argued that the site is re-growing and could be restored as Heathland. However including this

site in the urban area will allow flexibility for potential development other than residential to take place in a sustainable location adjacent to the built up area.

In the event of a planning application the biodiversity and landscape character of the site would be satisfactorily protected through policies to manage the

natural environment

FWP1: Ferndown Town Centre Vision and FWP5: West Parley Village Centre Enhancement Scheme – are the policies up to date and consistent with advice from

the highway authority?

144. The Council has suggested changes to these policies to ensure that they reflect

the representations made by DCC and include up to date information on transport proposals. I agree that these changes, as set out in MM29, MM34 and MM35 are needed for accuracy.

VTSW7: St Leonards Hospital – does the policy provide adequate protection for priority habitats and species?

145. Concerns have been raised that the policy fails to address the need to protect priority habitats and species and I agree that the Councils’ proposed change, MM44, should be made to address this matter and ensure consistency with

national policy.

RA2:Furzehill Village Envelope – is the extension of the village envelope justified?

146. Furzehill, which is washed over by the GB, has a village envelope which is tightly drawn around the predominantly linear development along the main street. The proposed vacation of the existing Council Offices, which lie outside

the village envelope, means that they will be available for redevelopment in the early part of the Plan period.

147. It has been argued that this extension is not justified and that it is inconsistent with the approach taken in other parts of the rural area. However the policy provides for changing circumstances and allows a strategy for planned and

appropriate development to take place on the site, having in mind that it will remain within the GB. In these circumstances I am satisfied that the policy is

justified and consistent with national policy.

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Policy LN1: The size and type of new dwellings – is the inclusion of local space standards justified?

148. This policy seeks to link the size and type of housing delivered to projected need identified in the latest SHMA and future AMRs. Particular concerns relate to space standards in very small buildings and conversions. Some developers

are sceptical about its capability to influence housing delivery to meet housing need in such a detailed way and have raised concerns about possible impact

on viability.

149. The objectives of the policy are clear and consistent with the NPPF which urges local authorities to reflect local demand. However the forthcoming SPD which

the Councils will produce to set out detailed requirements may be overtaken by the Government’s review of housing standards. The Council has proposed

changes to take account of this, in MM56 and to clarify that Homes and Community Agency Housing Quality Indicators will be applied in advance of the SPD (MM57). Subject to both of these changes the policy is justified and

consistent with national policy.

Policy CH1 Christchurch Town Centre Vision – should reference to a new

community facility be included in the Plan?

150. Early versions of the Plan included the development of a new Druitt Hall and

subsequent iterations supported the provision of a new community facility in Christchurch town centre. However the submitted Plan makes no reference to a town centre community facility. The Council has explained that this reflects

the up to date position that it can no longer offer funding or financial support for such a facility.

151. Understandably this is very disappointing for the Druitt Hall Association Ltd and others who wish to see a community facility on the existing Druitt Hall site. However it is clear that the community is continuing to plan for a

replacement hall and outline permission for such a proposal was granted in 2013. There is nothing in the Plan as submitted to prevent such a proposal

progressing and indeed Policy LN6 sets out how new community facilities will be supported and that they should be concentrated in a number of listed settlements, of which Christchurch is the first.

152. In these circumstances it is clear that it would not be realistic or justified for the Plan to indicate that the Councils will initiate or fund a new community

facility in Christchurch. However Policy LN6 is effective, consistent with the NPPF and plans positively for the provision of community services. On this basis there is no justification to refer specifically to the Druitt Hall site.

Assessment of Legal Compliance

153. My examination of the compliance of the Plan with the legal requirements is

summarised in the table below. I conclude that the Plan meets them all.

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LEGAL REQUIREMENTS

Local Development Scheme (LDS)

The Core Strategy Local Plan is identified within the approved Christchurch LDS December 2012 and the

approved East Dorset LDS January 2013 which both set out an expected adoption date of December 2013. The Plan’s content is compliant with the LDSs

and the timing is not significantly delayed.

Statement of Community

Involvement (SCI) and relevant regulations

The SCIs were adopted in July and August 2006 and

consultation has been compliant with the requirements therein, including the consultation on

the post-submission proposed ‘main modification’ changes (MM)

Sustainability Appraisal (SA)

SA has been carried out and is adequate.

Appropriate Assessment (AA)

AA carried out in February 2012, November 2012 and December 2013 has found that no adverse

effect on the integrity of all European sites within and around the Plan area will occur from the Plan’s policies.

National Policy The Plan complies with national policy except where

indicated and modifications are recommended.

Sustainable Community

Strategy (SCS)

Satisfactory regard has been paid to the SCSs.

2004 Act (as amended)

and 2012 Regulations.

The Core Strategy complies with the Act and the

Regulations.

Overall Conclusion and Recommendation

154. The Plan has a number of deficiencies in relation to soundness for the reasons

set out above which mean that I recommend non-adoption of it as submitted, in accordance with Section 20(7A) of the Act. These deficiencies have been

explored in the main issues set out above.

155. The Councils have requested that I recommend main modifications to make

the Plan sound and/or legally compliant and capable of adoption. I conclude that with the recommended main modifications set out in the Appendix the Christchurch and East Dorset Core Strategy Local Plan satisfies the

requirements of Section 20(5) of the 2004 Act and meets the criteria for soundness in the National Planning Policy Framework.

Sue Turner

Inspector

This report is accompanied by the Appendix which contains the Main Modifications

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EP4 – Office for National Statistics – Vacant and unoccupied homes in Cornwall

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Neighbourhood Statistics

Original URL: https://www.neighbourhood.statistics.gov.uk/dissemination/LeadTableView.do?a=7&b=6275066& c=cornwall&d=13&e=7&f=32827& g=6409191&i=1001x1003x1004x1005& l=2561&o=362&m=0&r=1& s=1429861282710&enc=1

Household Spaces, 2011 (QS417EW) Period: Mar11

Area: Cornwall (Local Authority)

Variable Measure Cornwall South West England

All Household Spaces (Household Spaces)1 Count 259,346 2,408,437 23,044,097Household Spaces With At Least One Usual Resident (Household Spaces)1 Count 230,389 2,264,641 22,063,368

Household Spaces With No Usual Residents (Household Spaces)1 Count 28,957 143,796 980,729

Last Updated: 30 January 2013Source: Office for National Statistics

Notes1 National Statistics

This material is Crown Copyright. You may re-use this information (not including logos) free of charge in any format or medium, under the terms of the Open Government Licence. To view this licence, visit www.nationalarchives.gov.uk/doc/open-government-licence Information Policy Team, The National Archives, Kew, London TW9 4DU, or email:[email protected]. When reproducing this material, the source should be acknowledged.

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24/04/2015https://neighbourhood.statistics.gov.uk/dissemination/LeadTableView.do?a=7&b=627...063

EP5 – Satnam Millennium Ltd v Warrington Borough Council (2015) – High Court Judgement

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Case No: CO/4055/2014Neutral Citation Number: [2015] EWHC 370 (Admin)IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONADMINISTRATIVE COURT PLANNING COURT

Manchester Civil Justice CentreStrand, London, WC2A 2LL

Date: 19/02/2015

Before:

MR JUSTICE STEWART - - - - - - - - - - - - - - - - - - - - -

Between:

Satnam Millennium Limited Claimant - and -

Warrington Borough Council Defendant

- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -

Christopher Lockhart-Mummery QC (instructed by King & Wood Mallesons) for theClaimant

David Manley QC (instructed by DLA Piper) for the Defendant

Hearing dates: 03 & 04 February 2015- - - - - - - - - - - - - - - - - - - - -

Judgment

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Mr Justice Stewart:

1. The Claimant is a developer and owns some 65 hectares of land known as Peel Hall Farm (“Peel Hall”) in the designated suburban area of Warrington. The land is annotated on the Key Diagram of the adopted Local Plan.

2. The Claimant’s application is under section 113 of the Planning and Compulsory Purchase Act 2004 (the 2004 Act). The Claimant seeks to quash/remit parts of the Local Plan Core Strategy (Local Plan) for Warrington. Depending upon my rulings on the Grounds of challenge, the parties have agreed to try to resolve precisely which parts of the Local Plan would be quashed and remitted. The Local Plan was adopted by the Defendant on 21 July 2014.

3. An outline chronology of relevant events in relation to the Local Plan is as follows:

Nov-Dec 2011 public consultation on the Council’s Pre-Publication Draft Core Strategy,

May 2012: publication of the Council’s Submission Draft Core Strategy,

September 2012: submission of the Submission Draft Core Strategy to the Secretary of State for Communities and Local Government for examination,

11 December 2012: the Examination Inspector (“the Inspector”) holds an exploratory meeting,

June 2013: the examination hearings take place,

August 2013: consultation on proposed modifications to the draft Local Plan,

January 2014: further period of consultation on proposed modifications to the draft Local Plan,

5 March 2014: further examination hearing,

12 May 2014: the Inspector issues his report,

21 July 2014: adoption of the Local Plan,

28 August 2014: this claim issued.

4. The Claimant, who has for some years promoted Peel Hall for residential/mixed use development, made representations throughout the evolution of the Local Plan. Their aim was that the Local Plan should provide what they submit is an appropriate level of housing development, and having Peel Hall allocated for primarily residential development or, at least, to have the status of a “Strategic Location”.

5. The summary criticisms of the Local Plan are:

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(i) That it fails to provide an appropriate level of housing development in Warrington over the plan period of 2006 – 2027.

(ii) It does not allocate Peel Hall for residential development – at a late stage in the process it allocated the Omega site as a Strategic Location for the development of 1100 dwellings.

(iii) It abandons previous policy CS9 which gave Peel Hall and other locations the status of Strategic Locations.

Statutory and Policy Materials

6. The main relevant statutory policy and guidance materials are set out in Appendix 1 to this judgment.

Ground �: Relevant Case Law

7. Before I address the challenge under Ground 1 I shall mention certain principles which have emerged from the cases. A section 113 challenge can be brought on the basis of conventional public law princples – see Blyth Valley Borough Council v Persimmon Homes (North East) Limited1; Solihull MBC v Gallagher Estates Limited and Lioncourt Homes (“Gallagher”)2.

8. If a Local Planning Authority (LPA)/an Inspector do not properly reflect the requirements of National Policy and Guidance, then the Local Plan is open to a section 113 challenge.

9. In Gallagher the Court of Appeal upheld the High Court’s decision remitting the LPA’s Local Plan because the process failed to provide an objective assessment of full housing needs (OAN). This meant that the Inspector’s approach in relation to housing provision was neither correct nor lawful.

10. Paragraph 47 NPPF provides:

“to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework”.

In relation to this requirement the Court of Appeal had previously stated3:

“That qualification contained in the last clause quoted is not qualifying housing needs. It is qualifying the extent to which the Local Plan should go to meet those needs. The needs assessment, objectively arrived at, is not affected in advance of the production of the Local Plan, which will then set the requirement figure.”

1 [2008] EWCA Civ. 8612 [2014[ EWCA Civ. 16103 City and District Council of St Albans v Hunston Properties Limited [2013] EWCA Civ. 1610

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11. In Gallagher the Court of Appeal stated:

(Paragraph 10) “… the making of the OAN is an exercise which is prior to, and separate from, the application to that assessment of the impact of other relevant NPPF policies: the phrase "as far as is consistent with the policy set out in this Framework" "is not qualifying housing needs. It is qualifying the extent to which the Local Plan should go to meet those needs"….”

(Paragraph 16) “…The NPPF indeed effected a radical change. It consisted in the two-step approach which paragraph 47 enjoined. The previous policy's methodology was essentially the striking of a balance. By contrast paragraph 47 required the OAN to be made first, and to be given effect in the Local Plan save only to the extent that that would be inconsistent with other NPPF policies…The two-step approach is by no means barren or technical. It means that housing need is clearly and cleanly ascertained…. "[h]ere, numbers matter; because the larger the need, the more pressure will or might be applied to [impinge] on other inconsistent policies".”

In paragraph 18 the Court of Appeal said that the two step approach was mandatory.

Ground �

12. The Claimant summarised this Ground in the Skeleton Argument in this way:

“The Defendant and the Inspector misdirected themselves in law and policy, by failing to meet the critical requirement that the Local Plan should identify and address the full, objectively assessed needs for market and affordable housing (“OAN”) in Warrington. The Defendant, aided and abetted by the Inspector, failed to have proper regard to national guidance in the National Planning Policy Framework (“NPPF”) and the National Planning Policy Guidance (“PPG”) in that it failed to identify the OAN for housing, including affordable housing, whether in Warrington or the housing market area.”

13. In order to set the scene, it is necessary to have a little historical background:

(i) In 2004 RPG13 (Regional Planning Guidance for the North West) became part of the statutory development plan for the area. Policy SD2 stated “In Warrington the focus should be on achieving regeneration and restructuring of the older areas and not allowing further significant outward expansion of the settlement onto open land beyond existing commitments…” Policy UR7 sought to “minimise the amount of land needed for new housing…” RPG13 had a rate of housing growth for Warrington as 380 dpa (dwellings per annum). This figure had been based on 1996 projections.

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(ii) In 2006 the Warrington Unitary Development Plan (UDP) was adopted with Policy HOU1 providing for 380 dpa in the period 2002 – 2016 with no housing development on greenfield sites; Policy HOU2 required that housing development that did not contribute to the regeneration of inner urban areas was to be refused.

(iii) The Defendant published a Strategic Housing Market Assessment in 2007. This identified a total annual shortfall in Warrington of 1313 dpa stating “the results are driven by demand and are not constrained by any supply limitation, such as that in the draft RSS”.

(iv) The RSS (Regional Spatial Strategy for the North West) superseded RPG13 in 2008. Policy RDF1 of the RSS said that in locations such as Warrington “development should be focused in and around the centres of the towns and cities. Development elsewhere maybe acceptable if it satisfies other policies…emphasis should be placed on addressing regeneration and housing market renewal and restructuring.”

(v) In 2010 the DCLG (Department for Communities and Local Government) published 2008 based household projections for 2008 – 2028. The growth in households in Warrington was 840 households per annum.

(vi) In October 2011 the Mid Mersey Strategic Housing Market Assessment (SHMA) was published. This was in respect of the boroughs of Halton, St Helens and Warrington. Applying the DCLG household projections for 2010 – 2026 a growth in households of 13,800 was projected i.e. 862 dpa. That report also identified a net annual need for affordable housing in Warrington of 477 dpa.

(vii) In late 2011 the Defendant consulted on Proposed Policy CS2 which provided for housing growth at the rate of 500 dpa (net of clearance) between 2006 and 2027.

(viii) In May 2012 the Defendant published its proposed Submission Draft Core Strategy, the planned provision for housing being the same as in Proposed Policy CS2. This was two months after publication of NPPF. A Housing Background Paper was also published in May 2012.

Matters appear from the Housing Background Paper which are of importance:

(a) referring specifically to the NPPF requiring Local Plans to be informed by robust evidence and a SHMA to be used to clarify housing need and demand, and to provide an understanding of how the local housing market works, the Defendant refers back to the November 2007 study (updated in 2009) and states:

“A balanced housing market assessment resulted in a figure of 1313 dwellings per annum being required –this assessment looks at the imbalance in terms of mix and type of housing between supply and demand if the

069

market was totally unconstrained by Policy and local considerations and assuming all demand should be met” (paragraph 3.3).

(b) In paragraph 3.8 reference is made to the SHMA “in the collective sense” identifying national household projections of 1560 dpa with Halton pursuing 500 dpa, St Helens 570 dpa and Warrington 500 dpa. It is said “this equates to a collective 1570 which aligns well with the national projections for the sub region.”

(c) Three options were then considered. Option 2 was “prioritising development of Inner Warrington brownfield sites with selective release of other sites.”(para 5.12).

(d) In para 5.17 and 5.18 the Paper says that option 2 would equate to an annualised average of 458 dwellings which would “fall slightly short of the requirement from an economic perspective (497 pa) and those set out in the SHMA which relate to national household projections (730 pa) and a completely unconstrained balancing the housing market assessment (1313 pa). cf Also para 5.24.

(e) Finally, before selecting option 2 as the most appropriate option, para 5.33 states:

“Whilst the baseline option 2 position would result in an annualised average which would fall short of meeting projected housing needs, option 2 does allow for the selective release of additional sites within the plan period….a figure of 500 dwellings pa more closely aligns with projected housing needs; would meet more than “native growth”; and would align with the aspired level of new homes set out in the sub regional economic strategy.”

(ix) In May 2012 the Defendants also published the Strategic Background Paper. That contained references to the RSS which was subsequently revoked in 2013. Amongst other matters it is stated:

· “The Core Strategy broadly continues the strategy established in the UDP, though there are some adjustments to it”4

· “The housing land requirement taken forward in the Preferred Option reflects the regional distribution established in the approved RSS…The Core Strategy continues to respect the priority afforded to regeneration in

4 Paragraph 2.18

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the region and the associated strategic distribution of the development that at this point in time remains part of the approved development plan”5

· “The preferred option for the Core Strategy (Strategic Option 2) largely continues the regeneration emphasis of development established within RSS and the adopted Unitary Development Plan”.6

(x) In October 2012 the Core Strategy (Local Plan) for St Helens was adopted.

(xi) The Inspector held an exploratory meeting for the purposes of the examination on 11 December 2012. In January 2013 the Defendant issued a paper7 which said that as at 1 April 2012, 5075 of the total planned provision of 10,500 had been delivered, leaving a residual target of some 5425 new homes to be planned for between 2012 and 2027, equating to an annualised average of 362 dpa across the remaining 15 years of the plan period.

(xii) In January 2013 the Defendant issued Appendix A, Housing Scale and Distribution, saying that the housing provision of 500 dpa had also been derived by reference to the approach advocated by former PPS3 (paras 32 –33). This document also stated as a Core Assumption:

“Regional priorities for investment and development in the associated distribution of housing need and demand established in RPG/RSS will be maintained as a key factor in establishing the Borough’s housing requirements.”

(xiii) In March 2013 the Defendant issued a further Response Paper which acknowledged that Warrington’s needs were not to be considered in isolation8.

(xiv) In April 2013 the DCLG issued its 2011 based interim9 household projections for the period 2011 – 2021. The projected growth in households for Warrington was 1040 per annum.

(xv) In April 2013 the Core Strategy (Local Plan) for Halton was adopted.

(xvi) Otherwise, the brief chronology is set out in paragraph 3 of this judgment.

14.1 The Inspector made the following findings:

(i) That the Mid Mersey HMA and the SHMA were “critical to the soundness of the Plan” (para 50).

(ii) “…the Plan provision of 500 dpa would ensure that Warrington played its part in meeting the objectively assessed housing needs across the Mid Mersey sub regional housing market from 2006 to 2026” (para 61).

5 Paragraph 3.86 Paragraph 5.87 Examination Clarification, Housing Scale and Distribution8 See issue 1.8, paragraph 4; also paragraph 109 Because population projections had not been determined

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(iii) “The spatial framework of the Plan takes on board the NWRSS regeneration agenda, which aligns itself with a number of the core principles in the Framework…” (para 63).

(iv) “It is accepted that the Plan under provides housing in relation to both 2008 and the latest (2011) interim household projections, when taken in isolation. However, for the reasons already stated, I consider that Warrington’s housing provision should be assessed in relation to the projected need for the HMA as a whole”. (Para 65).

(v) “The objective needs assessment for the HMA as a whole would be met by the provision of 500 dpa in Warrington” (para 71).

(vi) “Although the vision of the Plan and its strategic objectives were prepared under the strategic direction and priorities of the NWRSS, it accords with the Framework (paragraph 47), which refers to meeting the housing needs in the housing market area (HMA), which for the reasons stated is the Mid Mersey sub region” (para 78).

(vii) “The appropriate geographical unit or “building block” for assessing Warrington’s housing requirements is the Mid Mersey HMA, which has been defined objectively. It includes the Boroughs of Halton, St Helens and Warrington. The needs of the Mid Mersey HMA are some 1600 dpa over the plan period, of which Warrington should supply 500 dpa. Therefore the Plan, subject to the proposed main modifications, is consistent with meeting the full housing needs of Warrington over the plan period…” (para 86).

(viii) “…I consider that the objectively assessed need for housing for Warrington has been considered as part of the Mid Mersey HMA; that the only permanent constraint has been the Green Belt; and that part of the support of the two neighbouring authorities in Mid Mersey HMA for a suppressed total within Warrington is predicated on the close relationship between jobs and housing within the HMA and the dominance of Warrington as the main employment area, which attracts in – commuters from the other two authorities.” (para 88).

(ix) “The Hunston Court of Appeal Judgment stated, in essence, that Inspectors are not entitled to use a housing requirement figure derived from a revoked plan, which of course means that Local Plans cannot rely on the constrained housing requirement set out in URS. In fact, the submitted plans breached the RS housing figures by a significant margin, and at no point during examination has the Council’s housing provision case relied on the RS, either directly or as a proxy, as was the case in the Hunston judgments. In conclusion I consider that the Hunston judgments have not necessitated a radical rethink of the planned housing provision…” (paras 89 and 90).

14.2 The issue is whether the Inspector’s Report is in accordance with the law and with policy. The Claimant breaks that down into five separate issues, namely:

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Issue 1 – Does the statutory framework require a local plan to identify the social and development needs arising in its area, and plan for the same?

Issue 2 – Do National Policy and Guidance require a Local Plan to identify the social and development needs arising in the area of the Local Planning Authority, and plan for the same?

Issue 3 – Did the Defendant/Inspector direct themselves properly to national policy and guidance and identify full OAN at all (i.e. even in relation to the HMA)?

Issue 4 – Did the Defendant/Inspector misdirect themselves in assuming that the housing needs of Warrington could or would be met in Halton and/or St Helens?

Issue 5 – Did the Defendant/Inspector identify affordable housing need as part of the full OAN?

Ground � Issue �

15. The central findings of the Inspector are his conclusions on Housing requirement as set out in paragraphs 86, 88 – 90 above.

16.1 The Claimant relies upon section 13(1), 15, 17(3)(6), 19(1A) 28, 38(3)(b) and 38(6)of the 2004 Act. They particularly emphasise:

(i) The duties of the LPA in respect of matters affecting/relating to the development/use of land “in their area”10.

(ii) The requirement to specify if there are any development plan documents to be prepared jointly with any other LPAs, and the power of two or more LPAs toagree to prepare one or more joint local development documents (section 15 and 28).

Based upon this, the Claimant points out that the LPA must understand the needs of its area and plan to meet those needs. There is no joint plan or agreement to prepare ajoint plan between Warrington/Halton/St Helens. On this basis, the Claimant submits that the Defendant/Inspector did not conform to the statutory framework.

16.2 Mention should also be made of section 19(2)(a) which requires the LPA in preparing a Local Plan to have regard to national policies and advice contained in guidance issued by the Secretary of State; also by section 20(5), the purpose of the independent examination by the Inspector is to determine whether a Local Plan is “sound”. As to this there is no further definition of “sound” and one has to have regard to paragraph 182 NPPF (see below).

10 cf also regulations 2(1), 6(1), 14(26) and 48(4) and (5)(a) and Regulation 48(6) and (7) of the Town and Country Planning (Local Development) (England) Regulations 2004; these were superseded by the 2012 Regulations: Regulation 2(1), Regulation 5, Regulation 6, Regulation 9, Regulation 18(2)(c), Regulation 34 and Regulation 35(1).

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17. Before dealing with Issue 1, I will consider Issue 2.

Ground � Issue �

18. In terms of the NPPF, reference is made to paragraphs 14, 17, 47, 153, 156, 157, 159 and 182. Paragraph 14 under the heading “Plan Making” requires LPAs positively to seek opportunities to meet the development needs “of their area”. The Claimant points throughout these paragraphs to words such as “their area”, “its area” (LPA’s area) etc.

19. Also account must be taken of paragraph 17 NPPF which requires every effort to be made objectively to identify and then meet housing development needs of an area and paragraph 47 which requires LPAs to boost significantly the supply of housing. LPAs should “use their evidence base to ensure that their Local Plan meets the full objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the Policy set out in this Framework….”

20. NPPF paragraph 159, requires LPAs to have a clear understanding of housing needs in their area and to “prepare a Strategic Housing Market Assessment to assess their full housing needs, working with neighbouring authorities where the housing market areas cross administrative boundaries…” The SHMA has to identify the scale and needs of housing and the range of tenures that the local population is likely to need over the planned period which: “…addresses the need for all types of housing, including affordable housing….”

21. Finally paragraph 182 requires the LPA to submit a plan which it considers “sound”namely, “positively prepared - …based on a strategy which seeks to meet objectively assessed development and infrastructure requirements, including unmet requirements from neighbouring authorities where it is reasonable to do so and consistent with achieving sustainable development…”

22. Reference is also made by the parties to the Guidance under the PPG, relevant extracts from which are set out at Appendix 1.

Ground �: Issues � & � Discussion

23. The relevant HMA in the present case covers the Warrington/Halton/St Helens areas. Therefore, the HMA, not unusually, does not coincide with administrative boundaries11. These three areas comprise the Mid Mersey sub regional housing market, a grouping established since the days of the North West RSS and reaffirmed most recently through the Mid Mersey SHMA (October 2011).

24. According to the Defendant’s documents, paragraph 47 NPPF makes clear that the OAN for housing is to be identified by reference to the relevant HMA.12 The Claimant, on the other hand, points to the statutory references to the LPA’s “area”together with other references to the LPA’s area in the PPG13. As to the references to

11 See the Defendant’s Hearing Statement WBC – C (S10 – LDF118) in response to the Inspector’s issue 1.7; also paragraph 12 of the statement of Michael Bell dated 3 October 201412 The Defendant relies also in this regard to the NPPG’s references to the HMA in the section “Housing and Economic Development Needs Assessment” paragraph 003 – 007 and paragraph 008.13 See NPPG “local plans” paragraph 002 and 003

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the HMA the Claimant says (i) that National Policy and Guidance recognises that most administrative areas are not self contained in relation to their development needs and those needs are sensibly considered in the context of the needs and development capacity of proximate administrative areas. (ii) Re paragraph 47 NPPF that an LPA has to assess the needs in its own area, but then has to use its evidence base to ensure that Local Plan meets the full OAN in the housing market area, which may/may not cross administrative boundaries. (iii) In relation to paragraph 159 NPPF, that the SHMA is to assess “their” (ie. the LPA’s) full housing needs, working with the neighbouring authorities where HMAs cross boundaries. This, they say, is consistent with their general proposition. The Claimant contends that the Defendant’ssubmission, based on certain Policy extracts, that approaching development needs solely on the basis of a HMA which crosses the administrative boundaries,contravenes the statutory framework.

25. The authorities do not yet deal with whether the OAN must be of the individual LPA or the HMA, if the HMA crosses administrative boundaries. In my judgment, as a matter of principle, the law in relation to Issue 1 and Issue 2 ie. the Statutory Framework and the National Policy and Guidance can be distilled in this way:

(i) The 2004 Act, in relation to the sections cited, refers to the LPA’s “area”. The LPA’s statutory duty is and must be in relation to their area. Thus, the primary duty of the LPA is, to assess the needs of the LPA area. The question remains as to how this is achieved.

(ii) Para 47 NPPF requires the Local Plan to meet the full OAN in the HMA. That much is clear.

(iii) Paragraph 159 NPPF is helpful in clarifying this. It is to be noted that it deals particularly with housing. It begins by requiring LPAs to have a clear understanding of housing needs “in their area”. It then proceeds to require LPAs to prepare a SHMA to assess their full housing needs, working with neighbouring authorities where housing market areas cross administrative boundaries. In other words, the LPA has to have the clear understanding of their area housing needs, but in assessing these needs, is required to prepare an SHMA which may cross boundaries.

(iv) The PPG Local Plan provisions, paragraphs 002 and 003, refer to the LPA’s “area” and do not sit easily with this analysis. Nor do they sit easily, however,with the specific Housing etc needs assessment PPG paragraphs, 003, 007 and 008, which emphasise the needs assessment in the context of the HMA; this part of the PPG states on its face that the related Policy is paragraph 159 NPPF.

(v) Insofar as the general provisions in paragraph 14 and the plan making provisions in paragraphs 153 and 157 NPPF refer to the “area”, that is to be read as above.

(vi) Under section 28 of the 2004 Act, two or more LPAs may agree to prepare one or more joint Local Development documents. Para 179 NPPF requires LPAs to work collaboratively with other bodies. The Local Planning section of the NPPG (paragraph 007) reemphasises the duty to cooperate between LPAs and other public bodies when preparing the plan “where there are matters that would

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have a significant impact on the areas of two or more authorities.” Paragraph 007 points out that the joint Local Plan “is one means of achieving this”, stating“Less formal mechanisms can also be used.”14

Ground �: Issue �

26. Against that Statutory/Policy/Guidance background, what is the actual position in the present case? Issue 3 is in two parts. I shall deal firstly with the second part, namely whether the Defendant/Inspector identified a full OAN at all, even in relation to the HMA.

27. The starting point for the assessment of OAN is the publication by DCLG of its household projections.15 These are prepared by reference to administrative areas.

28. I have already stated that LPAs should have a clear understanding of housing needs in their own area. Did the Defendant have such a “clear understanding”? The Defendant’s submission is that they did and that that figure was 862 dpa. The Claimant contests this and says that this figure was never assessed by the Defendant (nor by the Inspector). I find that it was so assessed by the Defendant and by the Inspector. In summary:

(i) It was assessed as an integral part of the SHMA. Paragraph 4.24 of that document relies on the 2008 DCLG projections. Figure 4.14 then provides a figure for all three Boroughs. The figure for Warrington equates to the 862 dpa. The figure for the Mid Mersey region equates to 1560 dpa.

(ii) In the March 2013 Response Paper “Issues: 1.8 Housing Requirements” the Defendant referred to the Housing Background Paper (May 2012) which identified varying levels of annualised needs ranging between 434 and 1313 and continued (paragraph 8) that the Defendant considered an appropriate benchmark for objectively assessed housing need was provided by way of the 2008 DCLG Household projections. This is clearing adopting the same benchmark as in the SHMA, namely 86216

(iii) In January 2013 Appendix A, Housing Scale and Distribution document, reference is made to the fact that St Helens and Halton Core Strategies had been examined and found sound. Figure 4.14 SHMA is reproduced with the following statement “The Warrington element of the total planned requirement for the Mid Mersey area is less than indicated by the LA based Household projection as indicated in figure 4.14 – Warrington’s need is in the region of c860.” This again clearly adopts a Warrington needs figure of around 862 dpa while commenting that their residual delivery under the SHMA, taking into account St Helens and Halton’s contribution, was 490 dpa.

(iv) The Claimant relies heavily on the Housing Background Paper of May 2012. That Paper refers to the SHMAs without highlighting the 862 dpa figure. It

14 I do not read para 010 if the Housing etc part of the NPPF as stating that a joint plan is the only permissible way to prepare an OAN across boundaries.15 cf the Gallagher case in the High Court [2014] EWHC 1283 (Admin) para 37(ii).16 In fact the DCLG figure was 840 but that is within reasonable tolerance levels

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refers to the 1313 dpa being the figure “If the market was totally unconstrained with Policy and local considerations and assuming all demand should be met. The assessment took no account of future additions to the stock from new build”17 This Paper discusses household projections and promotes option 2 by reference to its consistency with the residual figure of some 500 dpa. It does not of itself specifically identify the 862 dpa for Warrington, before taking into account the affect of the other Boroughs.

(v) Turning to the Inspector’s report, paragraphs 61 – 79 are under the heading “Has Warrington’s Full Housing Requirements Been Identified?” He specifically notes18 the 2008 DCLG Household projections indicatingWarrington’s figure of 850 dpa. In paragraph 65 he points out that it is accepted that the Plan under provides housing in relation to that figure.19 It is clear at this point that he appreciates from the 2008 figures there will be under provision but says that he considers that Warrington’s housing provision should be assessed in relation the projected need for the HMA as a whole. In his conclusion on the housing requirement he says in paragraph 86 “The needs of Mid Mersey HMA are some 1600 dpa over the planned period, of which Warrington should supply 500 dpa.” This figure i.e. the 1600 is specifically stated to be from the SHMA. It is clearly a reference to figure 4.14, the breakdown of which shows 862 dpa for Warrington.

(vi) Therefore the Inspector said that the needs for the Mid Mersey HMA were some 1600 dpa over the plan period. This, with its analysis to be found in the Mid Mersey HMA, was the OAN of the HMA. This, though it could have been more clearly stated, was in my judgment sufficient compliance with the Statute/Policy/Guidance and with the requirement to assess fully and objectively the housing need.20

29. The remaining issue remaining part of Issue 3 is whether the Defendant/Inspector failed to direct themselves properly to national policy and guidance. Criticism is levelled against the Defendant and the Inspector on the basis that the figure of 500 dpa first appeared in November/December 2011 and was never changed. This is factually accurate. It is also true that this was originally determined by reference to now revoked policies and guidance in the UDP, the RSS and PPS3. The Claimant’s case is that it remained contaminated by these policies which progressively became out of date, at the latest by May 2013.

30. It is unsurprising given the timeframe that the outdated policies were part of the evolving process. I do not accept the Claimant’s criticism. The Inspector clearly took it on board as a point in paragraphs 89 and 90 of his Report. He rejected it. It is correct that in the earlier document of January 2013, namely Appendix A, Housing Scale and Distribution, reference was made to the fact that the figure of 500 dpa “has also been derived by way of reference to the other considerations listed and hence approach advocated by the former PPS3”. Nevertheless, this was the secondary basis.

17 Paragraph 3.3; 18 Sub paragraph 64(i)19 He also recognises the 2011 interim household projections which were higher but which he determines to be unreliable in paragraphs 67 – 69 of the Report.20 cf Gallagher [2014] EWHC 1283 (Admin), para 99; Gallagher Court of Appeal paragraphs 10 and 16.

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Totally independently and in my judgment lawfully, the earlier part of the document referred to the SHMA, referred to the HMA’s need as 1560 dpa and to Warrington’s need being in the region of 860 dpa, and adopted the approach of the St Helens and Halton Core Strategies having been found sound and, on their housing requirement provision figures, leaving a residual 490 units for Warrington to deliver.

31. I do not find any criticism of the Defendant or the Inspector on this Ground to be valid. It was consistent with Policy to reduce the starting figure of 862 for Warrington to reflect the SHMA provision as a whole as part of the OAN process. As paragraph 88 of the Inspector’s report makes abundantly clear the OAN for housing for Warrington, considered as part of the Mid Mersey HMA, was then reduced to a “suppressed total” “predicated on the close relationship between jobs and housing within the HMA and the dominance of Warrington as the main employment area, which attracts in-commuters from the other two authorities.”

32.1 The Claimant also submitted that there was no evidence that the 1560 dpa for the HMA is an NPPF compliant figure. However there was no specific development of this theme in the argument. I note in this regard that the Halton and St Helens plans have been adopted and have been found to be sound. That finding, in conjunction with the Inspector’s Report which I am considering, is sufficient to dispose of that criticism.

32.2 The PPG21 requires that the starting point number i.e. that suggested by household projections, should be adjusted to reflect appropriate market signals. These are set out in full in Appendix 1. The Claimant says that the Inspector’s Report is silent on the topic and therefore there was an unlawful failure to have regard to the material considerations in the Guidance which is made in relation to NPPF, paragraph 17. The difficulty with this submission is that on the basis of the evidence before the Court, it is wholly unclear that any party to the process, including the Claimant and other developers, suggested market signals might modify the DCLG housing projections. In an ideal world the Defendant and the Inspector should have specifically noted this, but there was nothing before the Court to suggest that the outcome would have been in any way affected. In any event, in the circumstances it would seem to be a pointless exercise to remit on this basis.


33. The Claimant further says that there was a mis-direction by assuming that Warrington’s needs could/would be met by Halton/St Helens.

34. The Inspector states in paragraph 66 of his report:

“It is clear from the SHMA and the evidence provided by the Halton and St Helens Councils, that there is an understanding between the three Mid Mersey Local Authorities that the HMA growth of 1560 dpa is intended to meet the needs of all three authorities, despite the lack of formal agreement to this effect, and that there is a need to ensure a consistent approach across the Mid Mersey HMA…”

21 Housing and Economic Development Needs Assessment, paragraphs 019 And 020

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35. The Claimant says that not only is there no agreement, there is not even a memorandum of understanding; the Local Plan for St Helens says the provision of 570 dpa is in order to meet “its growth aspirations” and the adopted Local Plan for Halton states that the provision of the 500 dpa meet the need of Halton.

36. Nevertheless, the evidence is clear that the Inspector was right that there is an understanding between the three local authorities. In particular the first joint statement by Halton BC and St Helens Council, at paragraph 1.7 under the SHMA heading, references to the fact that “Para 4.25 of the Mid Mersey SHMA states that taking account of the 570 in St Helens and 500 in HBC, there is aresidual 490 dwellings left over for Warrington to meet the 2008 based HHprojections for the entire Mid Mersey HMA of 1560 dwellings pa.” It is also stated “we consider that an approach where Warrington seeks solely to have regard to its geographic area alone without any regard to the wider housing market area is similarly not supported by the evidence base raising questions of soundness.”

37. I do not regard the wording of the Local Plans for St Helens/Halton to be in conflict with this.

38. For those reasons I do not consider there is any illegality in the approach of the Defendants/the Inspector on issue 4.


39. Paragraphs 47 and 159 NPPF require respectively that the Local Plan meets the full OAN for affordable housing in the HMA and that the SHMA addresses the need for all types of housing, including affordable housing.

40. The Claimant submits:

(i) That the assessed need for affordable housing is 477 dpa

(ii) The Defendant/Inspector unlawfully failed to identify this need

(iii) The NPPF requires full affordable housing needs to be identified as part of the OAN so that the figure can be subject, if appropriate, to the paragraph 14 NPPF constraints.

41. In his report the Inspector said:

“Affordable Housing

102 Policy SN2 sets the framework for securing a mix of housing type. It requires all developments of five or more dwellings to 20% provision for affordable housing (AH), with the proportion rising to 30% on developments of 15 or more dwellings on sites outside the town centre and Inner Warrington, and 30% on all Greenfield sites. The policy was tested by a Viability Assessment in September 2010 and an Additional Note in January 2013 in response to my request for clarification. The Additional Note included sensitivity testing

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of a wide range of development scenarios, covering schemes from 5 – 100 dwellings, with varying dwelling mixes, a range of AH proportions (10 – 40%), and the application of these scenarios to indicative locations within the borough.

103. This viability work supports Policy SN2’s AH target and demonstrates that the Plans requirements as a whole do not threaten the deliverability of the Plans AH provisions. The potential number of AH units could be exceeded on certain sites, such as those with low existing use values and/or where grant contributions would be forthcoming. The Policy requires demonstration of lack of viability where developers claim that the proportion of AH sought by the Council would not be achievable, and it gives a clear steer on the proportion of social rented and intermediate housing being sought by the Council.

104. The Council’s Housing Service supports the AH targets and thresholds in Policy SN2, whilst stressing the importance of negotiation and ensuring a reasonable ongoing provision rather than placing an undue focus on trying to meet the same fixed parameters on every site. The Council’s main modification to clarify the need for flexibility in negotiating precise dwelling types on a site by site basis, linked to locally identified needs with reference to the most up to date SHMA…, is required on the grounds of effectiveness.”

42. Mr Bell’s statement deals with the affordable housing need at paragraph 23 –27. He points out that the 2011 SHMA identified a net annual need for affordable housing in Warrington of 477 dpa and 2593 dpa across the subregion. He said that the resulting numbers in calculating affordable housing will typically exceed what can realistically be delivered in practice and therefore, in accordance with paragraph 47 NPPF, total affordable housing need should be considered in the context of its likely delivery as a proportion of mixed market and affordable housing development. He also points to Policy SN2 of the LocalPlan which sets out means whereby the Defendant will seek positively to maximise the supply of affordable housing through the planning system consistent with NPPF.

43. The question is whether there has been compliance with Policy. I find that there has not been compliance. The reasons are as follows:

(i) The assessed need for affordable housing was 477 dpa.

(ii) This assessed need was never expressed or included as part of the OAN.

(iii) Under the “Housing Requirements” section of the Report the Inspector does not deal with affordable housing. Paragraphs 102 – 104 set out above is under a section entitled “Other Housing Needs”. This is in the context

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of Policy SN2 which relates to the percentage of housing developments that should incorporate affordable housing.

(iv) No is there anything in Mr Bell’s statement which suggests that the proper exercise was undertaken. This exercise is:

(a) having identified the OAN for affordable housing, that should then be considered in the context of its likely delivery as a proportion of mixed market/affordable housing development; an increase in the total housing figures included in the local plan should be considered where it could help deliver the required number of affordable homes22;

(b) the Local Plan should then meet the OAN for affordable housing, subject only to the constraints referred to in NPPF, paragraphs 14 and 47.

Ground � and �

44. Ground 2 is that the Defendant failed to carry out Strategic Environmental Assessment/Sustainability Appraisal (SEA/SA)23 in accordance with the requirements of European and Domestic Law.

45. Ground 3 is that the Defendant and the Inspector unlawfully predetermined the outcome of the Local Plan process prior to proper and systematic SEA/SA.

46. After setting out some background, I will deal first with Ground 3.

47. SEA Directive2001/42/EC requires SEA to be undertaken at every stage of the preparation of the Local Plan. The Directive is transposed into English law in the Environmental Assessment of Plans and Programmes Regulations 2004 (“the 2004 Regulations”). It is common ground that:

(a) the SEA must be carried out at all stages of the production of a Development Plan Document;

(b) all reasonable alternatives under consideration must be assessed;

(c) defects in the process can be rectified but not as a bolt-on consideration of an already chosen preference.24 In this regard Beatson LJ in Chalfont St Peter Parish Council v Chiltern DC etc25 said “It is clear from the Directive and the Regulations that a sustainability appraisal must be carried out at each stage of the development of the Core Strategy and…that “reasonable alternatives to the challenged policies be identified,described and evaluated before the choice [is] made”.”

22 PPG Housing and Economic Development Needs Assessments, paragraph 02923 The only reference in statute to the SA is in S19(5) of the 2004. In reality the challenge is re the SEA.24 See Cogent Land LLP v Rochford DC [2012] EWHC 2542 (Admin)25 [2014] EWCA Civ. 1393 (para 75)

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48. It is agreed that prior to the SA Report Addendum January 2014 the proposed modifications had not been prepared in the light of an SEA assessment that dealt with reasonable alternatives. The Defendant published for consultation Post Submission Proposed Modifications on 19 August 2013, including modification reference MMO5 with regard to an identified level of housing provision at a particular strategic site (Omega), allocated under Policy CS7 of the Local Plan and modification MM08 deleting draft policy CS9. The Defendant concedes that the August 2013 document did not include a consideration of reasonablealternatives26. Therefore, the further exercise in sustainability appraisal had to be performed. URS Environment and Infrastructure UK Ltd (URS) were commissioned as external consultants to undertake this exercise and their report, dated January 2014, is the SA Report Addendum.

49. The Inspector’s report recommended a strategic housing proposal at Omega and Lingleymere (Omega) and the deletion of the CS9 sites which included Peel Hall. The Claimant’s case is that there is no clearer example of the later SEA being a “bolt-on consideration of an already chosen preference”. In support of that the Claimant refers to the following:

(i) By 30 July 2013 the Inspector issued his report to the Defendant for fact check purposes. Paragraph 56 of that report mirrors paragraph 92 of final May 2014 Report in recommending the Omega allocation and the deletion of the CS9 sites27.

(ii) In an email dated 7 August 2013 the Defendant’s planning officer indicated the proposal to subject Policy CS7 (Omega) and other policies to SEA. He wrote “we do not consider that the modifications result in a departure from the overarching strategic option pursued, and see no reason to reassess options at a strategic level. At the more localised policy level however, we are proposing to reassess the impact of policies CS7…upon the SA objectives, but initial work suggests the changes would result in further positive effects only…” This approach was endorsed by the Inspector in an email dated 8 August 2013.

(iii) On 19 August 2013 the Defendant published its Post Submission Proposed Modifications to the Local Plan Core Strategy. In a sustainability appraisal update report is the incorrect statement that it “had incorporated the statutory requirements to undertake a Strategic Environmental Assessment (SEA).

50. In addition to the above the Claimant relies upon the Defendant’s Officer (a) on 18 October 2013 stating that Defendant Council saw no need to consider reasonable alternatives before asking URS for the “independent option” and (b) on 12 November 2013 referring to the fact that the Defendant has resolved to progress with “remedial” SA work in accordance with the recommendations provided by URS. Therefore, according to the Claimant, the Defendant and

26 This is despite the document stating on its face that it “has incorporated the statutory requirements to undertake a Strategic Environmental Assessment (SEA)”27 The Claimant had suspected that this was the case and sought unsuccessfully over a number of months to obtain the earlier Inspector’s report. It was finally released by the Inspectorate pursuant to an application under CPR 31.17.

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Inspector had predetermined their position in relation to Omega/Peel Hall by August 2013 without lawful consideration of reasonable alternatives; the SEA process commenced some months later was in effect a “bolt on”.

51. There is a witness statement from Ian McCluskey dated 4 October 2014. Mr McCluskey is a Senior Consultant working for URS. He sets out the background to the Defendant undertaking SA and then responds to the Claimant’s points.

52. As regards the allegation that there was a bolt on exercise to justify a predetermined strategy, he accepts28 that although in the period of June to August 2013 the Defendant considered there were no reasonable alternative approaches to the proposed modifications that needed to be assessed as part of the process of updating the Report, the Defendant did not make its rationale in these matters clear in the Report of August 2013. Therefore, at that stage the proposed modifications had not been prepared in the light of a transparentassessment of any reasonable alternatives. He says that when URS were commissioned in late 2013 by the Defendant, they were not made aware of the July 2013 Inspector’s Fact Check report and that report formed no part of their assessment of the SEA work that the Defendant had undertaken or the subsequent discussion of reasonable alternatives in the SA Report Addendum Report that URS produced.29 The Inspector requested details of the Defendant commissioning instructions to URS to be submitted to the EiP at the time of the final hearing session in March 201430. For these reasons his witness statement, signed with a statement of truth, says that the URS work was undertakenindependently and without bias and was not a bolt-on consideration of an already chosen preference. This was accepted by the Inspector. The Claimant does not challenge Mr McCluskey’s bona fides.

53. I pause at this stage to assess and determine the position at August 2013 and whether, in accordance with ground 3, what finally emerged was essentially a bolt-on justifying a predetermined strategy. My decision is that as of August 2013, had nothing further taken place, then the proposed modifications had not been prepared in the light of a lawful SEA. The Inspector in the Final Report held that the URS initiative and subsequent developments in early 2014 werenot confirming a predetermined position. Although one can understand the Claimant’s scepticism and their request to invite the court to “reflect on the reality”, I do not accept their submissions. I am impressed by the evidence of Mr McCluskey and the detail which he sets out in his statement as to the lack of awareness by URS of the Inspector’s Fact Check report of July 2013 and that the URS work was undertaken independently and without bias.

54. I appreciate that the Claimant says that the determination was made by the Defendant Council and the Inspector, both of whom reached essentially the same decision as at July 2013. I also appreciate that there is no evidence from the Officers of the Defendant Council. Nevertheless, I am not persuaded that Ground 3 is made out.

28 Paragraph 929 Paragraph 14 30 Paragraph 16

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55. That leaves Ground 2. The Claimant alleges that the SEA in the January 2014 Addendum still failed to comply with European and Domestic Law. The simplest way into this issue is via the 2004 Regulations. By Regulations 5, 8(2), 8(3)(a) and 12(1) – (3) a report has to contain the matters in schedule 2. These Regulations and schedule 2 (the relevant paragraphs) are to be found in Appendix 1. Certain key matters are agreed, namely: there was no compliance by the Defendant with paragraphs 4, 7, 9 and 10. As to paragraphs 6(b), (d), (e), (j) and (m), the Defendant accepts that there were omissions. In relation to the paragraph 6 omissions, the Defendant submits that they were covered by page 46 of the URS Report which stated:

“Where Policies and amendments would have no impact on a particular sustainability theme, then these are not included in the discussion and it should be assumed that the impact is negligible.”31

56. The Guidance under Directive2001/42 requires that each 10 paragraphs of the Annex, which is reproduced in Appendix 2 to the 2004 Regulations, is to be examined in the light of the requirements in Article 5. (Paragraph 5.19). Paragraph 5.30 of the Guidance makes it clear that the purpose of the non-technical summary is to make the key issues and findings of the Environmental Report accessible and easily understood by the general public as well as by the decision makers.

57. My finding is that there was substantial non-compliance with the requirements of schedule 2 to the 2004 Regulations in respect of all the paragraphs which I have set out above. I do not accept that the conclusions on page 55 of the URS Report can be said to be a mere procedural defect. The Defendant submitted that the deficiencies were more of form than substance. Therefore, that I should exercise my discretion not to quash on these grounds. In relation to this submission, I have considered the principles in Walton v Scottish Ministers[2012] UKSC 4432 and the case of Seaport Investments Ltd.33 I determine that it would be wholly wrong to exercise my discretion to refuse to quash on those grounds.

58. For completeness I briefly deal with the final issue under Ground 2, namely was it lawful for the Defendant/Inspector to fail to consider alternative options for housing growth in Warrington reflecting the needs of Warrington on the basis that “I do not consider options for Warrington in isolation to be reasonable alternatives for the SA to appraise.” The Defendant concedes that if it lost on Ground 1 then it must fail on this basis also. The converse was not accepted by the Claimant who submitted that the starting point according to Government Guidance, namely the DCLG projections, must be a reasonable alternative; in addition, one then factors in the alternative housing figures. Therefore, according to the Claimant, the Defendant had to consider figures in the region of

31 Further, the Defendant says that although some of the particular headings in paragraph 6 were not specifically followed, they were incorporated under different generic headings in subsequent pages of the URS Report and in Appendix 2 to that Report.32 Paras 125, 126, 129 – 140 33 [2007] NIQB 62, paras 27, 34

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862 – 1040 dpa. The Claimant’s response was based on Ashdown ForestEconomic Development LLP v Secretary of State for Communities and Local Government and others34. In paragraph 90 the judge said that the LPA has a substantial area of discretion as to the extent of the enquiries which need to be carried out to identify the reasonable alternatives which should then be examined in greater detail. I do not need to determine this point in the light of the fact that I have decided that Ground 2 is made out by the Claimant in any event.

Summary

59. Under Ground 1, the Claim succeeds on Issue 5 only.

· The Claim succeeds on Ground 2

· The Claim fails on Ground 3.

34 [2014] EWHC 406 (Admin)

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APPENDIX 1

Planning and Compulsory Purchase Act 200413Survey of area(1)The local planning authority must keep under review the matters which may be expected to affect the development of their area or the planning of its development

(2)These matters include—

(a)the principal physical, economic, social and environmental characteristics of the area of the authority;

(b)the principal purposes for which land is used in the area;

(c)the size, composition and distribution of the population of the area;

(d)the communications, transport system and traffic of the area;

(e)any other considerations which may be expected to affect those matters;

(f)such other matters as may be prescribed or as the Secretary of State (in a particular case) may direct…..

15Local development scheme(1)The local planning authority must prepare and maintain a scheme to be known as their local development scheme.

(2)The scheme must specify—

(a)the documents which are to be local development documents;

(b)the subject matter and geographical area to which each document is to relate;

(c)which documents are to be development plan documents;

(d)which documents (if any) are to be prepared jointly with one or more other local planning authorities;

(e)any matter or area in respect of which the authority have agreed (or propose to agree) to the constitution of a joint committee under section 29…..

17Local development documents(1)Documents which must be specified in the local development scheme as local development documents are—

(a)documents of such descriptions as are prescribed;

(b)the local planning authority’s statement of community involvement.

(2)The local planning authority may also specify in the scheme such other documents as they think are appropriate.

(3)The local development documents must (taken as a whole) set out the authority’s policies (however expressed) relating to the development and use of land in their area….

(6)The authority must keep under review their local development documents having regard to the results of any review carried out under section 13 or 14.

(7)Regulations under this section may prescribe—

(a)which descriptions of local development documents are development plan documents;

(b)the form and content of the local development documents;

(c)the time at which any step in the preparation of any such document must be taken.

19Preparation of local development documents

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…….

(1A)Development plan documents must (taken as a whole) include policies designed to secure that the development and use of land in the local planning authority's area contribute to the mitigation of, and adaptation to, climate change….

(2)In preparing a local development document the local planning authority must have regard to—

(a)national policies and advice contained in guidance issued by the Secretary of State;

……………….

(f)the community strategy prepared by the authority;

(5)The local planning authority must also—

(a)carry out an appraisal of the sustainability of the proposals in each document;

(b)prepare a report of the findings of the appraisal.

20Independent examination(1)The local planning authority must submit every development plan document to the Secretary of State for independent examination……

(5)The purpose of an independent examination is to determine in respect of the development plan document—

(a)whether it satisfies the requirements of sections 19 and 24(1), regulations under section 17(7) and any regulations under section 36 relating to the preparation of development plan documents;

(b)whether it is sound.

28Joint local development documents(1)Two or more local planning authorities may agree to prepare one or more joint local development documents.

(2)This Part applies for the purposes of any step which may be or is required to be taken in relation to a joint local development document as it applies for the purposes of any step which may be or is required to be taken in relation to a local development document

(3)For the purposes of subsection (2) anything which must be done by or in relation to a local planning authority in connection with a local development document must be done by or in relation to each of the authorities mentioned in subsection (1) in connection with a joint local development document.

33ADuty to co-operate in relation to planning of sustainable development(1)Each person who is—

(a)a local planning authority,

(b)a county council in England that is not a local planning authority, or

(c)a body, or other person, that is prescribed or of a prescribed description,

must co-operate with every other person who is within paragraph (a), (b) or (c) or subsection (9) in maximising the effectiveness with which activities within subsection (3) are undertaken.

(2)In particular, the duty imposed on a person by subsection (1) requires the person—

(a)to engage constructively, actively and on an ongoing basis in any process by means of which activities within subsection (3) are undertaken, and

(b)to have regard to activities of a person within subsection (9) so far as they are relevant to activities within subsection (3).

(3)The activities within this subsection are—

(a)the preparation of development plan documents………

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37Interpretation………..

(3)A development plan document is a document which—

(a)is a local development document, and

(b)forms part of the development plan……..

38Development plan….(3)For the purposes of any other area in England the development plan is—

…..

(b)the development plan documents (taken as a whole) which have been adopted or approved in relation to that area.

……………

(6)If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.

113 Validity of strategies, plans and documents(1)This section applies to—

…………

(c)a development plan document;

…………..

and anything falling within paragraphs (a) to (g) is referred to in this section as a relevant document.

………………

(3)A person aggrieved by a relevant document may make an application to the High Court on the ground that—

(a)the document is not within the appropriate power;

(b)a procedural requirement has not been complied with.

………….

(7)The High Court may quash the relevant document—

(a)wholly or in part;

(b)generally or as it affects the property of the applicant.

(7A)If the High Court remits the relevant document under subsection (7)(b) it may give directions as to the action to be taken in relation to the document.

(7B)Directions under subsection (7A) may in particular—

(a)require the relevant document to be treated (generally or for specified purposes) as not having been approved or adopted;

(b)require specified steps in the process that has resulted in the approval or adoption of the relevant document to be treated (generally or for specified purposes) as having been taken or as not having been taken;

(c)require action to be taken by a person or body with a function relating to the preparation, publication, adoption or approval of the document (whether or not the person or body to which the document is remitted);

(d)require action to be taken by one person or body to depend on what action has been taken by another person or body.

(7C)The High Court's powers under subsections (7) and (7A) are exercisable in relation to the relevant document—

(a)wholly or in part;

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(b)generally or as it affects the property of the applicant

(8)An interim order has effect until the proceedings are finally determined.

(9)The appropriate power is—

(a)Part 1 of this Act in the case of a revision of the regional spatial strategy;

(b)section 60 above in the case of the Wales Spatial Plan or any revision of it;

(c)Part 2 of this Act in the case of a development plan document or any revision of it;

(d)sections 62 to 78 above in the case of a local development plan or any revision of it;

(e)sections 334 to 343 of the Greater London Authority Act 1999 (c. 29) in the case of the spatial development strategy or any alteration or replacement of it.

(10)A procedural requirement is a requirement under the appropriate power or contained in regulations or an order made under that power which relates to the adoption, publication or approval of a relevant document.

……….

NationalPlanningPolicyFramework14.AttheheartoftheNationalPlanningPolicyFrameworkisapresumptioninfavourofsustainabledevelopment,whichshouldbeseenasagoldenthreadrunningthroughbothplan-makinganddecision-taking.

Forplan-makingthismeansthat:localplanningauthoritiesshouldpositivelyseekopportunitiestomeetthe

developmentneedsoftheirarea;LocalPlansshouldmeetobjectivelyassessedneeds,withsufficient

flexibilitytoadapttorapidchange,unless:anyadverseimpactsofdoingsowouldsignificantlyanddemonstrably

outweighthebenefits,whenassessedagainstthepoliciesinthisFrameworktakenasawhole;or

specificpoliciesinthisFrameworkindicatedevelopmentshouldberestricted

Coreplanningprinciples17.Withintheoverarchingrolesthattheplanningsystemoughttoplay,asetofcoreland-useplanningprinciplesshouldunderpinbothplan-makinganddecision-taking.These12principlesarethatplanningshould:

begenuinelyplan-led,empoweringlocalpeopletoshapetheirsurroundings,withsuccinctlocalandneighbourhoodplanssettingoutapositivevisionforthefutureofthearea.Plansshouldbekeptup to date,andbebasedonjointworkingandco operationtoaddresslargerthanlocalissues.Theyshouldprovideapracticalframeworkwithinwhich

089

decisionsonplanningapplicationscanbemadewithahighdegreeofpredictabilityandefficiency; ..

proactivelydriveandsupportsustainableeconomicdevelopmenttodeliverthehomes,businessandindustrialunits,infrastructureandthrivinglocalplacesthatthecountryneeds.�veryeffortshouldbemadeobjectivelytoidentifyandthenmeetthehousing,businessandotherdevelopmentneedsofanarea,andrespondpositivelytowideropportunitiesforgrowth.Plansshouldtakeaccountofmarketsignals,suchaslandpricesandhousingaffordability,andsetoutaclearstrategyforallocatingsufficientlandwhichissuitablefordevelopmentintheirarea,takingaccountoftheneedsoftheresidentialandbusinesscommunities;

�.�eliveringa widechoiceofhigh�ualityhomes

47.Toboostsignificantlythesupplyofhousing,localplanningauthoritiesshould:usetheirevidencebasetoensurethattheirLocalPlanmeetsthefull,

objectivelyassessedneedsformarketandaffordablehousinginthehousingmarketarea,asfarasisconsistentwiththepoliciessetoutinthisFramework,includingidentifyingkeysiteswhicharecriticaltothedeliveryofthehousingstrategyovertheplanperiod

identifyandupdateannuallyasupplyofspecificdeliverablesitessufficienttoprovidefiveyearsworthofhousingagainsttheirhousingre�uirementswithanadditionalbufferof�� movedforwardfromlaterintheplanperiod�toensurechoiceandcompetitioninthemarketforland.Wheretherehasbeenarecordofpersistentunderdeliveryofhousing,localplanningauthoritiesshouldincreasethebufferto2�� movedforwardfromlaterintheplanperiod�toprovidearealisticprospectofachievingtheplannedsupplyandtoensurechoiceandcompetitioninthemarketforland;

identifyasupplyofspecific,developable sitesorbroadlocationsforgrowth,foryears�-1�and,wherepossible,foryears11-1�;

Plan-makingLocalPlans1��.�achlocalplanningauthorityshouldproduceaLocalPlanforitsarea .

1��.Localplanningauthoritiesshouldsetoutthestrategi�prioritiesfortheareaintheLocalPlan.Thisshouldincludestrategicpoliciestodeliver:

thehomesandjobsneededinthearea;

1�7.Crucially,LocalPlansshould:planpositivelyforthedevelopmentandinfrastructurere�uiredinthearea

tomeettheobjectives,principlesandpoliciesofthisFramework;

..

090

indicatebroadlocationsforstrategicdevelopmentonakeydiagramandland-usedesignationsonaproposalsmap; ..Housing

1��.Localplanningauthoritiesshouldhaveaclearunderstandingofhousingneedsintheirarea.Theyshould:

preparea�trategic�ousing� arketAssessmenttoassesstheirfullhousingneeds,workingwithneighbouringauthoritieswherehousingmarketareascrossadministrativeboundaries.The�trategic�ousing� arketAssessment shouldidentifythescaleandmixof housingandtherangeoftenuresthatthelocalpopulationislikelytoneedovertheplanperiodwhich:

meetshouseholdandpopulationprojections,takingaccountofmigrationanddemographicchange;

addressestheneedforalltypesofhousing,includingaffordablehousingandtheneedsofdifferentgroupsinthecommunity�suchas,butnotlimitedto,familieswithchildren,olderpeople,peoplewithdisabilities,servicefamiliesandpeoplewishingtobuildtheirownhomes�; and

catersforhousingdemandandthescaleofhousingsupplynecessarytomeetthisdemand;

Planningstrategicallyacrosslocalboundaries

17�.Publicbodieshaveadutytocooperateonplanningissuesthatcrossadministrativeboundaries,particularlythosewhichrelatetothestrategicprioritiessetoutinparagraph1��.The�overnmentexpectsjointworkingonareasofcommoninteresttobediligentlyundertakenforthemutualbenefitofneighbouringauthorities.

17�.LocalplanningauthoritiesshouldworkcollaborativelywithotherbodiestoensurethatstrategicprioritiesacrosslocalboundariesareproperlycoordinatedandclearlyreflectedinindividualLocalPlans.�ointworkingshouldenablelocalplanningauthoritiestoworktogethertomeetdevelopmentre�uirementswhichcannotwhollybemetwithintheirownareas forinstance,becauseofalackofphysicalcapacityorbecausetodosowouldcausesignificantharmtotheprinciplesandpoliciesofthisFramework.Aspartofthisprocess,theyshouldconsiderproducingjointplanningpoliciesonstrategicmattersandinformalstrategiessuchasjointinfrastructureandinvestmentplans.

�xaminingLocalPlans

1�2.TheLocalPlanwillbeexaminedbyanindependentinspectorwhoseroleistoassesswhethertheplanhasbeenpreparedinaccordancewiththe�utytoCooperate,legalandproceduralre�uirements,andwhetheritissound.A

091

localplanningauthorityshouldsubmitaplanforexaminationwhichitconsidersis sound namelythatitis:

�ositivel�prepared theplanshouldbepreparedbasedonastrategywhichseekstomeetobjectivelyassesseddevelopmentandinfrastructurere�uirements,includingunmetre�uirementsfromneighbouringauthoritieswhereitisreasonabletodosoandconsistentwithachievingsustainabledevelopment; .

NPPG

Housing and economic development needs assessments

The approach to assessing need ..

Paragraph: 003 Reference ID: 2a-003-20140306

What is the definition of need? Need for housing in the context of the guidance refers to the scale and mix of housing and the range of tenures that is likely to be needed in the housing market area over the plan period – and should cater for the housing demand of the area and identify the scale of housing supply necessary to meet that demand………..

Assessing development needs should be proportionate and does not require local councils to consider purely hypothetical future scenarios, only future scenarios that could be reasonably expected to occur.


Can local planning authorities apply constraints to the assessment of development needs?

The assessment of development needs is an objective assessment of need based on facts and unbiased evidence. Plan makers should not apply constraints to the overall assessment of need, such as limitations imposed by the supply of land for new development, historic under performance, viability, infrastructure or environmental constraints. However, these considerations will need to be addressed when bringing evidence bases together to identify specific policies within development plans.

………..

092


With whom do local planning authorities need to work?Local planning authorities should assess their development needs working with the other local authorities in the relevant housing market area or functional economic market area in line with the duty to cooperate. This is because such needs are rarely constrained precisely by local authority administrative boundaries……..

……………

Scope of assessments Paragraph: 008 Reference ID: 2a-008-20140306

What areas should be assessed? Needs should be assessed in relation to the relevant functional area, ie housing market area, functional economic area in relation to economic uses, or area of trade draw in relation to main town centre uses………


…..

Where there is a joint plan, housing requirements and the need to identify a five year supply of sites can apply across the joint plan area. The approach being taken should be set out clearly in the plan.

…….


What is the starting point to establish the need for housing?Household projections published by the Department for Communities and Local Government should provide the starting point estimate of overall housing need.

The household projections are produced by applying projected household representative rates to the population projections published by the Office for National Statistics. Projected household representative rates are based on trends observed in Census and Labour Force Survey data.

The household projections are trend based, ie they provide the household levels and structures that would result if the assumptions based on previous demographic trends in the population and rates of household formation were to be realised in practice. They do not attempt to predict the impact that future government policies,

093

changing economic circumstances or other factors might have on demographic behaviour.

The household projection-based estimate of housing need may require adjustment to reflect factors affecting local demography and household formation rates which are not captured in past trends.


What is the starting point to establish the need for housing?………..

The household projection-based estimate of housing need may require adjustment to reflect factors affecting local demography and household formation rates which are not captured in past trends……


The housing need number suggested by household projections (the starting point) should be adjusted to reflect appropriate market signals, as well as other market indicators of the balance between the demand for and supply of dwellings. Prices or rents rising faster than the national/local average may well indicate particular market undersupply relative to demand. Relevant signals may include the following:

• Land Prices Land values are determined by the demand for land in particular uses, relative to the supply of land in those uses. The allocation of land supply designated for each different use, independently of price, can result in substantial price discontinuities for adjoining parcels of land (or land with otherwise similar characteristics). Price premiums provide direct information on the shortage of land in any locality for any particular use.

• House Prices Mix adjusted house prices (adjusted to allow for the different types of houses sold in each period) measure inflation in house prices. Longer term changes may indicate an imbalance between the demand for and the supply of housing. The Office for National Statistics publishes a monthly House Price Index at regional level. The Land Registry also publishes a House Price Index and Price Paid data at local authority level.

• Rents Rents provide an indication of the cost of consuming housing in a market area. Mixed adjusted rent information (adjusted to allow for the different types of properties rented in each period) shows changes in housing costs over time. Longer term changes may indicate an imbalance between demand

094

for and supply of housing. The Office for National Statistics publishes a monthly Private Rental Index.

• Affordability Assessing affordability involves comparing house costs against the ability to pay. The ratio between lower quartile house prices and the lower quartile income or earnings can be used to assess the relative affordability of housing. The Department for Communities and Local Government publishes quarterly the ratio of lower quartile house price to lower quartile earnings by local authority district.

• Rate of Development Local planning authorities monitor the stock and flows of land allocated, permissions granted, and take-up of those permissions in terms of completions. Supply indicators may include the flow of new permissions expressed as a number of units per year relative to the planned number and the flow of actual completions per year relative to the planned number. A meaningful period should be used to measure supply. If the historic rate of development shows that actual supply falls below planned supply, future supply should be increased to reflect the likelihood of under-delivery of a plan. The Department for Communities and Local Government publishes quarterly planning application statistics.

• Overcrowding Indicators on overcrowding, concealed and sharing households, homelessness and the numbers in temporary accommodation demonstrate un-met need for housing. Longer term increase in the number of such households may be a signal to consider increasing planned housing numbers. The number of households accepted as homeless and in temporary accommodation is published in the quarterly Statutory Homelessness release.

Revision date: 06 03 2014Paragraph: 020 Reference ID: 2a-020-20140306

Appropriate comparisons of indicators should be made. This includes comparison with longer term trends (both in absolute levels and rates of change) in the: housing market area; similar demographic and economic areas; and nationally. A worsening trend in any of these indicators will require upward adjustment to planned housing numbers compared to ones based solely on household projections. Volatility in some indicators requires care to be taken: in these cases rolling average comparisons may be helpful to identify persistent changes and trends.

In areas where an upward adjustment is required, plan makers should set this adjustment at a level that is reasonable. The more significant the affordability constraints (as reflected in rising prices and rents, and worsening affordability

095

ratio) and the stronger other indicators of high demand (eg the differential between land prices), the larger the improvement in affordability needed and, therefore, the larger the additional supply response should be.

Market signals are affected by a number of economic factors, and plan makers should not attempt to estimate the precise impact of an increase in housing supply. Rather they should increase planned supply by an amount that, on reasonable assumptions and consistent with principles of sustainable development, could be expected to improve affordability, and monitor the response of the market over the plan period.

The list of indicators above is not exhaustive. Other indicators, including those at lower spatial levels, are available and may be useful in coming to a full assessment of prevailing market conditions. In broad terms, the assessment should take account both of indicators relating to price (such as house prices, rents, affordability ratios) and quantity (such as overcrowding and rates of development).

Revision date: 06 03 2014


What is the total need for affordable housing?The total need for affordable housing should be converted into annual flows by calculating the total net need (subtract total available stock from total gross need) and converting total net need into an annual flow.

The total affordable housing need should then be considered in the context of its likely delivery as a proportion of mixed market and affordable housing developments, given the probable percentage of affordable housing to be delivered by market housing led developments. An increase in the total housing figures included in the local plan should be considered where it could help deliver the required number of affordable homes.

http://planningguidance.planningportal.gov.uk/blog/guidance/housing-and-economic-development-needs-assessments/methodology-assessing-housing-need/ -paragraph_029Revision date: 06 03 2014

�ocal �lans

Local Plans Key Issues..

Paragraph: 002 Reference ID: 12-002-20140306

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What should a Local Plan contain?……………

The Local Plan should aim to meet the objectively assessed development and infrastructure needs of the area, including unmet needs of neighbouring areas where this is consistent with policies in the National Planning Policy Framework as a whole. Local Plans should recognise the contribution that Neighbourhood Plans can make in planning to meet development and infrastructure needs.


How is a Local Plan produced?Local planning authorities develop a Local Plan by assessing the future needs and opportunities of their area, developing options for addressing these and then identifying a preferred approach……


Can a local planning authority produce a joint Local Plan with another authority or authorities? Section 28 of the Planning and Compulsory Purchase Act 2004 enables two or more local planning authorities to agree to prepare a joint Local Plan, which can be an effective means of addressing cross-boundary issues, sharing specialist resources and reducing costs (e.g. through the formation of a joint planning unit).

The duty to cooperate requires local planning authorities and certain other public bodies to cooperate with each other in preparing a Local Plan, where there are matters that would have a significant impact on the areas of two or more authorities. A joint Local Plan is one means of achieving this and those preparing Joint Plans will wish to consider a joint evidence base and assessment of development needs. Less formal mechanisms can also be used. In particular, local planning authorities should consider the opportunities for aligning plan timetables and policies, as well as for sharing plan-making resources.

The Environmental Assessment of Plans and Programmes

Regulations 2004

………

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PART 2ENVIRONMENTAL ASSESSMENT FOR PLANS AND PROGRAMMES�nvi�onmental assessment �o� plans and p�og�ammes� �i�st �o�mal p�epa�ato�� act on o� a�te� ��st �ul� ��

��—(1) Subject to paragraphs (5) and (6) and regulation 7, where—(a) the first formal preparatory act of a plan or programme is on or after 21st July 2004; and(b) the plan or programme is of the description set out in either paragraph (2) or paragraph (3),the responsible authority shall carry out, or secure the carrying out of, an environmental assessment, in accordance with Part 3 of these Regulations, during the preparation of that plan or programme and before its adoption or submission to the legislative procedure……..

�est�iction on adoption o� su�mission o� plans� p�og�ammes and modi�ications �

(2) A plan or programme for which an environmental assessment is required by any provision of this Part shall not be adopted or submitted to the legislative procedure for the purpose of its adoption before—

……..(b) in any other case, the requirements of paragraph (3) below, and such requirements of Part 3 as apply in relation to the plan or programme, have been met.

(3) The requirements of this paragraph are that account shall be taken of—(a) the environmental report for the plan or programme;…………

…………

PART 3ENVIRONMENTAL REPORTS AND CONSULTATION PROCEDURES

��epa�ation o� envi�onmental �epo�t

��—(1) Where an environmental assessment is required by any provision of Part 2 of these Regulations, the responsible authority shall prepare, or secure the preparation of, an environmental report in accordance with paragraphs (2) and (3) of this regulation.(2) The report shall identify, describe and evaluate the likely significant effects on theenvironment of—(a) implementing the plan or programme; and(b) reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme.(3) The report shall include such of the information referred to in Schedule 2 to theseRegulations as may reasonably be required, taking account of—(a) current knowledge and methods of assessment;(b) the contents and level of detail in the plan or programme;(c) the stage of the plan or programme in the decision-making process; and(d) the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment.

…………..

SCHEDULE 2 Regulation 12(3)

INFORMATION FOR ENVIRONMENTAL REPORTS

098

��

�� Any existing environmental problems which are relevant to the plan or programme including, in particular, those relating to any areas of a particular environmental importance, such as areas designated pursuant to Council Directive 79/409/EEC on the conservation of wild birds and the Habitats Directive.

�� http://planningguidance.planningportal.gov.uk/blog/guidance/local-plans/preparing-a-local-plan/ - paragraph_007�� The likely significant effects on the environment, including short, medium and long-term effects, permanent and temporary effects, positive and negative effects, and secondary, cumulative and synergistic effects, on issues such as—

(a) biodiversity;(b) population;(c) human health;(d) fauna;(e) flora;(f) soil;(g) water;(h) air;(i) climatic factors;(j) material assets;(k) cultural heritage, including architectural and archaeological heritage;(l) landscape; and(m) the inter-relationship between the issues referred to in sub-paragraphs (a) to (l).

�� The measures envisaged to prevent, reduce and as fully as possible offset any significant adverse effects on the environment of implementing the plan or programme.

…………

�� A description of the measures envisaged concerning monitoring in accordance with regulation17.�� A non-technical summary of the information provided under paragraphs 1 to 9.

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EP6 –

A - Committee History

B – October 2013 Committee Report

C – October 2013 Committee Minutes

D – November 2013 Committee Report

E – January 2014 Committee Report

F – January 2014 Committee Minutes

100

EP6a – Committee History

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1.1 This appendix summarises how the housing requirement evolved through the

committee system to determine the requirement of 47,500 dwellings. This is set out

chronologically and the relevant items are appended.

1.2 At the 15th October 2013 meeting of the Environment Heritage and Planning Portfolio

Advisory Committee, members were unable to decide the housing requirement to

proceed with and instead resolved to consider two options for the overall housing

requirement within the pre-submission draft Local Plan of 42,250 dwellings or 47,500

dwellings. The committee report and minutes are enclosed as Appendix EP6A.

1.3 At the 15th November Environment Heritage and Planning Portfolio Advisory

Committee, the same issues that were debated at the October meeting were

considered. A decision could not be made and the Committee resolved that the

matter is considered by the Cabinet at their meeting on 27th November 2013. The

committee report and minutes are enclosed as Appendix EP6B.

1.4 In the report to the 27th November Cabinet, the recommendation to members was

that the Council amends the draft Local Plan and agrees the overall housing number

and associated distribution from one of two options, either a higher figure of 47,500 or a

lower figure of 42,250 dwellings. The officer report states:

“Officers believe that a target based on the housing need arising from the

basic demographic projections in our recent Strategic Housing Market

Assessment, of 47,500 is the lowest that could be robustly defended at the

Examination. It does not include any allowance for meeting the backlog in

affordable housing or meeting the needs that might be required by higher

aspirations for economic growth; but relates to the projections stemming from

demographic change over the next 17 years. The level of growth this sets is still

significantly lower than past proposals and is broadly equivalent to the current

rate of house building across Cornwall, i.e. around 2,300 per year.” (our

emphasis)

1.5 As with the Environment Heritage and Planning Portfolio Advisory Committee, the

Cabinet could not decide on the requirement and it was then left to the Full Council

meeting on 14th January 2014 to decide. The report and minutes of the 27th November

Cabinet are enclosed as Appendix EP6C.

1.6 As the report and minutes for the 14th January Full Council meeting (Appendix EP6D)

confirm, there is a clear difference of opinion between officers and different members

of the Council. At that meeting it was resolved to proceed with the requirement of

47,500 dwellings. That figure is at the bottom of the range of the Strategic Housing

Market Need Assessment. The SHMNA dated July 2013 recommends:

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“In total the SHMNA suggests that there will be a requirement for between

47,300 and 71,980 dwellings between 2011/12 and 2030/31 to meet the

demands generated by new household formation and the labour force

demands of a growing local economy.”

1.7 At the meeting of the Full Council on 14th January 2014 a further item was considered

and the minutes state:

“CC/129 Cornwall Local Plan

Minutes:

Mr Cooper of Callington requested to know what source of information was used

to determine the figure for required housing that was in the Cornwall Local Plan

and whether the information was available for public scrutiny and if so where.

In response, Councillor Hannaford explained that ultimately the housing target for

the Local Plan was a decision for Members of the Council but would be tested at

an independent examination. The Strategic Housing Market Needs Assessment

(SHMNA) was the key piece of evidence for this and had been debated at length

by the Environment Heritage and Planning Portfolio Advisory Committee (PAC)

and Cabinet. Cornwall’s SHMNA was available on the Council’s Local Plan web

pages. National guidance placed much importance on a SHMNA and provided

clear guidance on how to prepare a SHMNA for Local Plans and, unless there was

a robust alternative, the set of population projections produced by the Office of

National Statistics was a key component as they took a sophisticated appraisal of

each age group into the future. These were regularly updated and were

available on the ONS website.

There was overwhelming evidence from Local Plans elsewhere that the Planning

Inspectorate found these ONS projections the most compelling evidence for

assessing housing need at Examination.”

1.8 This demonstrates the reliance on the ONS projections and it is of note that ultimately

the decision on the requirement was for members. Whilst this is technically true in that

their approval is required to submit the plan to the Secretary of State, the fact remains

that it needs to be reliant on the evidence base. The SHMNA is referred to and the

proposed requirement is only 200 dwellings above the minimum recommendation of

that report which in our view is only the demographic starting point.

1.9 There was then a further period of consultation and the Local Plan was then

considered at the Full Council on 16th December 2014 (Appendix EP6E) where it was

resolved to submit the plan to the Secretary of State. The resolution read:

“It was subsequently

RESOLVED that

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1. The Cornwall Local Plan, consisting of the Cornwall Local Plan:

Strategic Policies Proposed Submission Document 2010-2030 (March 2014)

and the Proposed Schedule of Focused Changes (Appendices 1 and 2

respectively) and associated supporting documentation, as set out in the

report, be submitted to the Secretary of State for examination, subject to the

inclusion of an updated table showing housing targets (including

completions and commitments) in the Community Network Areas.

2. The Council commits itself to a continued review of evidence, and

after the adoption of the proposed Local Plan, considers an early partial or

total review of the Plan, where required by evidence (including future

projections) and changing circumstances.”

1.10 It is of note that the second part of the resolution is to undertake an early partial or total

review of the Plan after the adoption. We question why this is necessary if the Council

considers that their plan is sound which would then inform the subsequent allocations

DPD. We therefore question whether the allocation of land will actually take place if it

is the resolution of the Council to undertake an immediate review further delaying

identifying and delivering the objectively assessed need of Cornwall.

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EP6b – Committee Report 15th October 2013

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Cornwall Council

Report to: Environment Heritage and Planning Portfolio Advisory Committee

Date: 15 October 2013

Title: Submission Draft Local Plan

Portfolio Holder(s) Edwina Hannaford, CC

Divisions Affected All

Relevant Overview And Scrutiny Committee:

n/a

Key Decision: Y Approval and clearance obtained:

Y

Urgent Decision: N Implementation Date: Normally 10 calendar days after decision for Cabinet

If Key Decision - on Forward Plan?

Y If not on Forward Plan – Procedure 15 or 16 used?

Na

Author: Steve Havers Role: Strategic Policy Manager

Contact: 01872 224404 [email protected]

Recommendations:

1. That the Cabinet amends the pre-submission draft Local Plan to include the major revisions set out (in bold print) in Appendix 1 and 2;

• An increase in overall housing number to 47,500 to the year 2030

• Alterations to the proposed distribution of new housing set out in appendix 3.

2. The minor amendments set out in Appendix 1 and 2 to the text of the document are approved in response to issues raised by the consultation.

3. That a further period of consultation on the amendments is undertaken

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before the plan is submitted to the Secretary of State.

1. Executive Summary: The Cornwall Local Plan(“the Plan”) provides the local policies to guide planning decisions. Until it is adopted the main planning policy for Cornwall is the National Planning Policy Framework and its presumption in favour of sustainable development. Several stages of its preparation are complete. The next stage is to submit the draft Plan to the Secretary of State for Examination by an independent Inspector. There are a number of minor amendments to the Plan which would help make it clearer and clarify points in response to concerns raised during the consultation process. However, more significantly, officers strongly advise that the low overall housing target, compared to national demographic projections makes the Plan vulnerable at Examination and has a high risk of failure, which can be seen from experience with other Local Plans. Failure at examination would cause significant delay before the Plan can be adopted. The recommendation of the report therefore is to revise the housing target to one in line with National guidance with a greater likelihood of success at examination. However if members wish to progress with the current proposed level of growth a number of other minor amendments are also set out in the appendices which are proposed but would not require an additional period of consultation before submitting the Plan. These are the two key alternative options for the Council; to progress the current draft plan to submission, or consult upon significant changes, including an increase to overall housing numbers. 2. Background and Corporate Objectives: The Cornwall Local Plan will set out the statutory planning policies against which planning applications will be judged. Until it is adopted the National Planning Policy Framework remains the dominant policy framework for planning decisions. The previous Council carried out a number of public consultations on its proposed draft Plan. The last consultation earlier in 2013 was a formal stage before submitting it to the Secretary of State from where it would go on to Examination. Comments received were analysed and the main issues reported to the previous meeting of this Advisory Committee in September. Representations raised a number of key concerns particularly the scale and distribution of the plan’s provision for housing as well as targets for affordable housing and jobs, and a number of other issues that are addressed in the proposed amendments to the Plan. Proposed responses to the representations are set out in Appendices 6 and 7.

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Cornwall Council The main topic of concern however is the housing target, some suggesting it to be too high, others too low. Government guidance, in the form of the National Planning Policy Framework however, requires housing targets to be set based on ‘objectively assessed needs’ using a Strategic Housing Market Assessment “.. taking account of migration and demographic change”. The housing targets in the draft Plan are lower than our most recent study (appendix 5) would suggest and previous national projections. Typically, other Plans that have been submitted with a target lower than their demographic projection or Regional Spatial Strategy target, have been rejected by the Planning Inspectorate before the examination or have failed. In the small number of cases where this has not happened, usually where land is identified for housing (unlike ours) the Inspector has stipulated a review of the Plan within 12 months to increase housing supply. A fuller assessment of the progress of other Local Plans around the Country is set out in appendix 4 of this report to provide members with a sense of how these plan are assessed and the issues raised. A Plan found unsound cannot be adopted by the Council. Submission of a weak Plan and/or failure at the Examination will significantly delay the adoption of the Plan due to the risk of the Inspectorate suspending the examination to require further work and consideration,. This will incur both costs and a delay in time before a plan is adopted. The Council is required to submit a Plan that it believes to be sound and that has been consulted on. Amendment of the Plan at this time would ensure a more sound Plan is submitted but would require further consultation as such a change would be considered a significant amendment prior to submission. A special, informal, meeting of this PAC in September considered;

• the risk of failure at submission/examination; • the basis for housing targets; and • the distribution of housing in the Plan.

All Council Members were invited to this meeting. A clear majority of those that attended indicated they wished an early as possible adoption of the Plan to establish a firm local policy framework and would support a revised housing target if that was what was required to secure an adopted plan. Officers believe that a target based on the housing need arising from the basic demographic projections in our recent Strategic Housing Market Assessment, of 47,500 is the lowest that could be robustly defended at the Examination. It does not include any allowance for meeting the

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Cornwall Council backlog in affordable housing or meeting the needs that might be required by higher aspirations for economic growth but relates to the projections stemming from demographic change over the next 17 years. The level of growth this sets is still significantly lower than past proposals and is broadly equivalent to the current rate of house building across Cornwall, ie around 2,300 per year. If this is change is accepted there are a range of other issues which warrant change that would also require additional consultation. Other Proposed amendments to the Plan are set out in Appendix 1 and 2, in summary they are;

a. Amend the distribution of the increased housing target to reflect a largely pro-rata distribution as set out in Appendix 3.

b. Add Penzance as a strategic town referenced in the Strategy (Policy

2) and increase the housing target for Penzance to reflect growth aspirations of the town.

c. Provide a landscape strategy statement in the Strategy (Policy 2) to

provide a fuller framework for the special character of Cornwall’s landscape and subsequent environment policy developing more fully the existing Plan’s text. Draft policy text to follow.

d. Amend the supporting text to better reflect how the Plan responds

to cross boundary issues and economic growth in South East Cornwall in particular.

e. Amend the text relating to the economy and the Strategy (Policy 2)

to be more closely aligned with the Economic Strategy of the Council and the Local Enterprise partnership including the removal of reference to job target.

f. Waste. The draft Plan proposes to explore any shortfall in capacity

for Local Authority Collected Waste through a separate Waste Development Plan Document. Recent information indicates this is no longer necessary and should be deleted from the text.

g. Clarity on approach to 5 year land supply and local area targets

once established through policy.

h. Delete policy requirements on public sector land for affordable housing as it is not substantiated on grounds of viability.

i. Edit the policy framework for Community Network Areas for

consistency focusing on the areas’ local objectives. The provision made in the C.N.A policies would be assimilated into the generic set of policies, particularly for housing and job targets while the retail

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and town centre allocations would be incorporated into the allocations DPD to enable more flexibility for these.

j. Amend Gypsy, Travellers and Travelling Showpeople Policy 12 to

reflect recently updated assessments. It is also proposed that the Plan gives clear reference and intent to prepare additional Development Plan Documents covering;

• Site and land Allocations; • Minerals Safeguarding, and • Travelling Communities

and Supplementary Planning Guidance on;

• Design; • building standards; • affordable housing; • assessing impact of renewable energy schemes; • landscape impact assessment incorporating methodologies,

landscape character and AGLVs. In addition a number of other issues have raised concerns that need to be considered. Affordable Housing targets continue to be an unresolved area of objections. In summary there are two areas of concern. The high targets are not able to be met consistently across Cornwall. On that basis in many areas they become aspirational leaving them vulnerable to challenge at the level of a planning application and at the Local Plan examination. In addition a number of authorities have also found that such high targets have impacted upon the level of community infrastructure levy they are able to justify at examination. The Plan’s levels for affordable housing targets will restrict the level of Community Infrastructure that can be set, as they are used as part of the assessment of the levels at their separate examination. The impact of the current targets are likely to lead to a reduction of the potential that can be achieved through the community infrastructure levy. In Cornwall’s diverse market, there will be some occasions where targets can be met reasonably but is difficult to demonstrate across all areas. A solution would be to have a more fine grained, set of targets reflecting local levels of viability. This approach formed part of the original draft of the Local Plan considered by the last Council. The targets included a wider range from the current 50% but for the settlements in zone 3 355 as opposed to the current 40% and for the areas in zones 4 and 5 a lower target again of 30%. This report still provided a challenging environment, but sought to reflect the differences across areas. It is worth noting the adopted targets of some of our adjoining Councils to gauge the market

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Cornwall Council Most are around 20-35% with a range from 10 % and in only two locations with targets of 50% in parts of East Devon and South Hams. The second key issue is the threshold at which we seek affordable housing. The Plan reduced this figure to a net increase of 2 units in both rural and urban areas. For most parts of Cornwall this is lower than previous policies, particularly in the towns. Concerns have been raised that this will have an adverse impact on smaller builders and lead to a reduction in delivery on the ground. Smaller developments such as this are important in both rural and urban areas of Cornwall. The alternative would be to increase the threshold to a net increase of five or through the supplementary planning guidance on affordable housing seek a more flexible way of dealing with smaller schemes through a off site contribution towards provision of affordable housing on other sites. Supplementary Planning Guidance on affordable housing, seek a more flexible way of dealing with smaller schemes through an off site contribution policy towards provision of affordable housing on other sites. In addition an issue which it is felt requires some greater clarity is the nature and scale and sustainability of settlements where infill development is acceptable. The Plan defines infill development in some detail and supports small scale development in villages, hamlets and smaller settlements. The nature of that settlement is also defined in the Plan as “having a form and shape and clearly defined boundaries, not just a low density straggle of dwellings. It is anticipated that the settlement will be part of a network of settlements and/or be in reasonable proximity to a larger village or town with more significant community facilities such as a primary school”. In recent appeals, the issue of what settlements should be considered for infill has been a significant issue. When the last Council considered the Plan, it looked at a range of options as to how these settlements are identified. These included: • List of larger settlements as appendix to the Plan, but allow

Neighbourhood Plans to identify smaller communities where infill is acceptable

• A minimum number of dwellings • Existing provision of key public services, e.g. refuse collection, school

bus route None of these were accepted and the current definition remains, but has led to some disagreement as to when a settlement meets its criteria.

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Cornwall Council This is a potentially significant area of change and it is important that all Members, officers and the community have an agreed understanding of the process. 3. Decision and Supporting Information (Including Options): The decision is to recommend to the Cabinet/Council how the Plan should proceed. There are a range of options for members to consider.

a. The recommendation of this report proposes the Council amends the draft Plan, including increasing the level of housing, and publishes a schedule of key changes for further consultation before submission to the Secretary of State alongside the earlier draft Plan consultation. The recommendation is that the changes set out in appendix 2 and 3 highlight in bold require further consultation, other changes can be considered more minor and for purposes of clarity.

b. The main alternative option is the current draft Cornwall Local Plan

be submitted, essentially unaltered, from the consultation version retaining the level of housing growth at 42,250. This would allow only minor changes to be made and hence would not require additional consultation. These changes are those identified in appendix 2 and 3 excluding those in bold print.

Justification for the lower housing target is vulnerable against the

tests at an Examination. The level of growth is likely to be questioned by the Planning Inspector either before or during the Examination as to how it relates to either our own latest projections or the latest national estimates. It is strongly advised that this is likely to lead to a suspension of any examination process and the Council being asked to reconsider its position by the Inspectorate or found unsound on this basis. This is likely to delay the adoption of the Plan by 18 months as further consultation would be required at a later stage to consider the higher levels of growth.

c. Other options would include retaining the current proposed level of

growth but consulting upon other significant changes such as a different distribution of growth across Cornwall .This would require further consultation now to address the significant changes and would be at the same risk as option b, above.

d. The Council could endorse a lower or higher figure . Two options for

lower numbers have been considered previously by PAC and Council (Appendix 8 & 9). Proceeding with a lower target would require further consultation and if a lower figure would be subject to the concerns raised for options b, and c above.

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Cornwall Council 4. Contributions to Corporate Priorities: The Plan provides the land use framework to a range of corporate priorities. These include the economic growth and the delivery of affordable housing but also impact upon areas of health and the environment. 5. Financial Implications and Budget: The Plan preparation is funded from existing operational budgets. However, delays for any reason will incur additional burden of staff costs to proceed. Delays as part of the submission and examination stage will incur additional costs from the planning inspectorate process. This would have to be met through the existing Service’s budget which will impede the delivery of other non-statutory functions. In addition, planning appeal decisions could incur costs if decisions are in clear conflict of the National Planning Policy Framework during any period of delay towards the adoption of the Plan. Planning by appeal, inquiries and costs. Without an adopted Local Plan the Council remains vulnerable to planning being taken through the appeal process. This process will lead to the Council incurring additional costs in having to respond to appeals and also where we are unable to substantiate a case the Council may be liable for additional costs imposed as an outcome of the appeal by an inspector. It is however not possible to provide a definitive estimate of these costs. 6. Other Resourcing Implications: Property - for example where the decision will result in significant changes to the Council’s property portfolio. If these changes are already identified in the Corporate Asset Management Plan, Area Asset Management Plan, or relevant Service Asset Management Plan these should be referenced. If they are significant and not already identified the Head of Property should be consulted. HR/Staffing – None Information Services – None Procurement and Contracts – None. 7. Legal Implications:

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Cornwall Council On submission to the Inspectorate the Plan should be capable of being robustly defended at Examination to reduce the risk of delay to the implementation of the plan 8. Equality Impact Assessment:

• The Local Plan policies are intended to be implemented for the public good.

• The Plan in its current state will not need meet the housing need

and especially delivering affordable housing and this has been highlighted on a number of occasions and consistently raised in Officer recommendations.

• The proposed recommendation to increase the housing target will

meet demographic projections but not address the backlog of affordable housing.

9. Significant risks: The significant risk is that the Plan is found unsound at the Examination leaving the Council with no local policy framework and the National Planning Policy Framework as the primary policy for planning decisions. Risk of planning by appeal and costs awarded against the Council. Incur unnecessary costs as a result of the way revisions would be made. 10. Consultation including Overview and Scrutiny Committee and Local Member Representation: Previous iterations subject to public consultation and governance structures of the previous administration including Cabinet and Council. This report presents advice previously considered by PAC & informal PAC. Subject to Council resolution to make significant amendments to the Plan a further period of consultation will be carried out to meet statutory requirements of Plan making. 10.1 Overview and Scrutiny Consultation/Comments: n/a 10.2 Local Division Member Comments: n/a

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Cornwall Council Supporting Information Appendices: Appendix 1: Local Plan General Policies – Post Consultation Amendments Appendix 2: Local Plan CNA’s – Post Consultation Amendments Appendix 3: Distribution Methodology and Table Appendix 4: Local Plan Review of Soundness relating to Housing Numbers Appendix 5: Cornwall Strategic Housing Market Needs Assessment Appendix 6: General Policies - Summary and responses to consultation

Appendix 7: CNA’s - Summary and responses to consultation Appendix 8: Planning Policy Advisory Committee report – Jan ‘13 Appendix 9: CoSERG statement – Oct 2012 Background Papers: None Approval and Clearance of Report All Reports:

Final Report Sign Offs This report has been cleared by OR not significant/ not required

Date

Finance Required for all reports

Russell Ashman, Assistant Head of Finance

1/10/2013

Legal (if significant/required)

Virginia Meldrum 2/10/13

Equality Impact Assessment (if significant/required)

Human Resources (if significant/required)

Property (if significant/required)

Procurement (if significant/required)

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Information Services (if significant/required)

Cabinet/Individual Decision Reports:

Final Report Sign Offs This report has been cleared by

Date

Head of service Phil Mason 1 Oct 2013

Corporate Director Paul Masters 1 Oct 2013

Draft Reports Process Checklist: Guidance: The following section is for use during the drafting of the report. Completion is the responsibility of the report author and it will be removed before publication. To be completed by report authors prior to submission: For Cabinet/Individual Decision reports the following checklist should be completed

Process Checklist Completed

Portfolio Holder/Member Champion briefed Yes

Corporate Director briefed Yes

Head of Service Sign off (draft) Yes

Data Protection Issues Considered Yes

If exempt information, public (part 1) report also drafted. (Cabinet/O&S)

Yes

If not on Forward Plan, Overview and Scrutiny offered the opportunity to consider the report

Yes

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