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High Court rejects prematurity challenge made on Aarhus grounds

DATE: 18 Jul 2013

The High Court (Hickinbottom J sitting in Birmingham) today dismissed a s. 288 challenge to the grant of planning permission on appeal by the Secretary of State for up to 800 dwellings, a mixed use local centre, highway and green infrastructure, and various associated works at land west of Shottery (“the Site”).  Shottery is a village lying between the Alcester Road and the Evesham Road, to the west of Stratford-upon-Avon, which has a number of historic buildings including Anne Hathaway’s Cottage with its garden which is registered as a garden of Special Historic Significance.   The s. 288 challenge was brought by Stratford-Upon-Avon District Council, the local planning authority.

One of the grounds of challenge alleged that the Secretary of State “failed to take into account the United Kingdom’s obligations pursuant to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (“the Aarhus Convention”) to ensure effective public participation in the plan-making process; and failed properly to apply national guidance in relation to emerging plans.”

The learned Judge rejected this saying:

“48. When an application for planning permission is made during the time when the relevant authority is travelling towards a new or revised development plan, the emerging plan is, as I have described, a material consideration in the application.  All planning applications cannot be put on hold simply because the new plan has not been finalised.  However, equally, the grant of permission in a particular application might have the potential for pre-empting or prejudicing the emerging development plan.  In those circumstances, an application might be refused as being “premature”.
49. This tension is addressed in the policy guidance document, “The Planning System General Principles” (“the Planning GPs”), ...
51. That national policy to an extent reflects the obligations imposed on the United Kingdom by the Aarhus Convention ...
59. The Inspector accepted that the proposed development would substantially prejudice the emerging plan, but gave that consideration little weight.  In doing so, Mr Cairnes submitted that the Inspector erred in that (i) he ignored the obligations under the Aarhus Convention to enable effective public participation in the plan process at a stage when all options are open, a matter specifically raised during the course of the inquiry; and (ii) he acted otherwise than in accordance with the Planning GPs.
61. The submissions were founded on the premise that, by finding on the evidence before him that the housing requirement for the district for the period 2008-2028 was 11,000-12,000, the Inspector effectively bound the Council as to the relevant housing requirement so far as the development plan was concerned.  As such, it added little to the first ground – hence my suggestion of overlap between the two grounds (paragraph 9 above).  But, as I have explained, that premise is false: the Council was bound neither in principle nor practice.  So far as the Core Strategy is concerned, on a different evidence base than that before the Inspector, the Council has determined that the 20-year housing requirement is 9,500 dwellings (see paragraph 46(iii) above).  However, of course that is not a complete answer to the point: the Inspector was still obliged to respect both the Planning GPs and Aarhus Convention rights and obligations.
62. As I have described, there is tension between two policy requirements: the need for the planning system not to be unduly inhibited by uncertainty as to future policy, and the need for planning decisions on individual planning applications not unduly to prejudice or pre-emept future development plans.  Because plans in this area change often and quickly – in an attempt to keep up with the fast-changing relevant variables, including national policy – a development plan is rarely stable, without any change in view, for very long.  Most, for most of the time, are the subject of some prospective change.  That means that the tension to which I have referred is often present to some degree. 
63. The mere fact that a change is proposed to the development plan of course does not mean that all applications for development have to be put on hold.  Given the propensity for change in policy and plans, that would bring the entire planning system to an effective halt.  As the Inspector put it (in paragraph 505 of his report), whilst acknowledging the consultation obligations in European law, “… it is important to avoid unreasonable holding up proposals on the basis of conflict with another process which has an uncertain outcome”.  A planning decision is therefore still required; but one material consideration in determining the application is the emerging plan, and that has to be put into the balance with all other material considerations.  That balancing exercise, so well-known in European law, is how the planning regime deals with the tension which I have described.
64. Paragraphs 17-19 of the NPPF, set out in paragraph 49 above, concern the proper approach to this task.  As paragraph 17 indicates, the emerging plan may be determinative where granting the application could prejudge or pre-empt the plan by pre-determining decisions that are being addressed as matters of policy in the plan.  Mr Cairnes submitted that paragraphs 17 and 18 when fairly read – particularly in view of the word, “Otherwise…”, that opens paragraph 18 – mean that, where granting permission could substantially prejudice the emerging plan by predetermining a decision about the scale, location of phasing of new developments which is being addressed as a matter of policy in the emerging plan, then the application must be refused on prematurity grounds; but that, with respect, is clearly not the case.  Paragraph 17 makes it clear that such prejudice may, not must, result in the refusal of an application, “may” being used twice in the paragraph (“It may be justifiable to refuse planning permission…. This may be appropriate…”).  Where a proposal may result in potentially substantial prejudice to the emerging plan, then the decision-maker still has a decision to make, the weight to be given to the emerging plan still being a matter for him, taking into account the factors set out in paragraph 216 of the Planning GPs, namely (a) the stage the emerging plan has reached, (b) the extent to which there are unresolved objections to the plan, and (c) the consistency of the emerging plan policies with the policies of the NPPF itself.
65. This is entirely in accord with the Aarhus Convention.  Article 7 of the Convention when read with article 6(3) (both set out in paragraphs 56-57 above) imposes an obligation upon the state to provide for early participation in plan-making “when all options are open and effective public participation can take place”.  However, that does not mean that all applications for specific developments must be put on hold whilst an emerging development plan, at whatever stage, runs through its rigorous course which of course will include full participation.  That, as I have said, would bring the planning system to a complete halt; and would defeat the other public interest involved, namely of getting applications for development determined promptly.  Allowing a particular development in accordance with current policy inevitably has the potential for restricting policy choices in the future.  Like the Planning GPs, the Convention too requires a judgment to be taken as to when an individual planning application decision can appropriately be taken, even if it has the potential for being contrary to some emerging plan that itself has not yet been subject to its full process including public participation in that process and thus the potential for limiting future policy choices.  Depending on the circumstances of the particular case, it may require public participation in the decision that, in the light of proposed policy in the form of an emerging plan, granting a specific application is not premature.
66. In this case, no one suggests that the public were not fully engaged, with every opportunity to participate, in both the current development plan (including the saved parts of the Local Plan Review which identified the Site as part of the housing land bank) and the application for planning permission for the Site, both at the initial, Council stage and the appeal stage before the Inspector.  There was every opportunity for interested parties to participate in those decision-making processes, and, quite properly, they took that opportunity.  The Inspector’s Report makes clear the participation that there in fact was.  That included participation in the process before the Inspector in which he considered and determined the weight to give to the emerging plan, which as a factor included, of course, the support and opposition that was being given to the relevant parts of the emerging plan and the argument that a decision to grant permission here might significantly prejudice the policy of the emerging plan; and his decision as to whether the conflict between the proposal and the emerging plan meant that the application should be refused.  But that did not mean that the Inspector was bound to conclude that the application should be refused on the grounds of prematurity.  If it did, it would mean, in effect, that permission could not be granted in respect of any development in respect of which there was any opposition, unless and until the development plan had been finalised.  That contention is not made better by being put obliquely, as opposed to head on.
67. The Planning GPs and the Convention therefore require the decision-maker, and the Inspector on his inquiry in this case, to make a planning assessment on the application, taking into account the emerging plan in accordance with the guidance in the NPPF and Planning GPs to which I have referred. 
68. There can be no doubt that the Inspector fully appreciated that task: in paragraph 503 of his report, under the cross-heading “Prematurity”, as Mr Cairnes accepted, he identified the appropriate provisions of the Planning GPs, and the obligations of the Aarhus Convention only applied because he identified them as being put before him and applicable to this case.
69. He then considered the potential harm to the emerging plan that might be caused by this proposal.  Having referred to the Localism Act 2011 and the Council’s Third Draft Core Strategy which reflected the shift towards localism, the Inspector recognised that the development proposal was inconsistent with the Draft Core Strategy as it then stood:
“… That current draft seeks to restrict the number of new dwellings in Stratford-upon-Avon to no more than 560-840 and limit the size of estates to 100 homes.  The appeal proposal is for up to 800 dwellings.  If granted permission, a wider dispersal of the remaining substantial proportion of the total number of dwellings that the Core Strategy seeks to provide for would still be possible.  However, the scale and location of the appeal scheme, and a prospect of immediate development, would run strongly counter to the strategy that the emerging plan is seeking to deliver.  This would be to a degree that a grant of permission would materially prejudice the outcome of that process.  The conflict between the proposal and the current version of the Core Strategy is widely cited in local representations, which see local decision making through the development plan as a key element of localism.”
70. But, as I have indicated, a finding of substantial potential prejudice to the emerging plan was not conclusive: he had to give that consideration the weight he considered appropriate, in the light of the guidance.  That he did, in paragraphs 505 and following, by going through each of the factors identified in paragraph 216 of the NPPF, in turn.  In doing so, he had the benefit of representations on the issue from both the Council and interested members of the public including RASE (Residents against Shottery Expansion) which is an Interested party in this claim.  In particular:
i) The Inspector noted that the Core Strategy was at an early stage: it had not been submitted for approval, and, in April 2012, the Council’s Planning Officers thought it unlikely that it would be submitted before November 2012.  This appears to have been a matter that the Council’s Planning Officers had particularly in mind, when they advised that the policy preferences of the emerging plan, which of course at this time had not been the subject of any public consultation process or sustainability appraisal, should be given “very little weight” or only “limited weight” (pages 82-3 of the Planning Committee report dated 21 September 2011).  In fact, we now know that caution concerning the date for submission was warranted: even now, in July 2013, it has still not yet been submitted.  The Inspector also noted that the emerging Core Strategy did not include site allocations and consequently would not resolve land delivery issues.  
ii) He noted the significant number of unresolved objections to the emerging plan – in fact, I understand 1,600 were received – and they were still being assessed and remained unresolved at the time of the Inspector’s Report.  I have referred to one particular response to the draft Core Strategy, from a neighbouring authority, which objected on the basis of the proposed displacement (see paragraph 43(iv) above).
iii) Whilst he (again) acknowledged that “the soundness of the emerging plan is not for determination through this appeal”, he considered that, including as it did a housing requirement figure of only 8,000 dwellings, “there do appear to be significant questions relating to the degree of consistency with the [NPPF]” (paragraph 508). 
It was only after taking all of those factors into account that the Inspector concluded, as a matter of planning judgment, that the weight to be given to the emerging plan was only “relatively little”. 
71. The Inspector’s analysis, his approach to the guidance in the NPPF and the Planning GPs, and his conclusion, are again unimpeachable as a matter of law.
72. Nor did the Aarhus Convention require more.  As I have indicated, interested members of the public had every opportunity to participate in all aspects of the development plan and changes to it, and in the decision-making process for all specific decisions, including in respect of the Site.  They had every opportunity to participate in the decision-making process that led to the Inspector determining that the weight he should give to the emerging plan was relatively little, and to his determination that other factors outweighed the potential harm to the emerging plan caused by this development.         
73. As in the first ground, Mr Cairnes put his submissions on this ground in a sophisticated and forceful way.  However, the Aarhus Convention does not require a blanket stop to be put on development that, potentially, might adversely impact on future policy; nor can it be used as a weapon for those who wish to inhibit development, in the hope that planning policy will change in the future to one which is more in line with their wishes.  The Convention, and the relevant national guidance, require the decision-maker in any specific planning application to balance emerging policy with other material considerations.  In this case, the Inspector, and the Secretary of State who adopted his analysis and conclusion on this point, conducted that analysis properly and lawfully.”

James Maurici QC and Richard Turney appeared for the Secretary of State.