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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Persimmon Homes (Thames Valley) Ltd & Ors v Stevenage Borough Council [2005] EWHC 957 (Admin) (20 May 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/957.html Cite as: [2005] EWHC 957 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 May 2005

HH Judge Mole QC sitting as a Deputy High Court Judge :

1. This is an application under section 287 of the Town and Country Planning Act 1990. By Ground 1 the Claimants say that Stevenage Borough Council (SBC) have erred in law in adopting a replacement local plan that is not in "general conformity" with the Structure Plan, and claim the quashing of the offending parts of the plan.
2. The claim under Ground 2 is that in breach of the law Stevenage Borough Council adopted the plan without considering the objection the Claimants had made to the proposed new boundary of the Green Belt near Norton Green and ask that the proposals map be quashed so far as it relates to that boundary. SBC does not oppose this ground save to argue that, in the exercise of my discretion, I should not grant the relief sought.

GROUND 1

3. The Hertfordshire Structure Plan Review, 1991-2011, was adopted by Hertfordshire County Council (HCC) on the 30th of April 1998. One of the matters it needed to address was the provision of land for strategic housing development. The deposit version of the plan was based upon the need for the provision of a total of 65,000 new dwellings. HCC believed that much of that would come from outstanding permissions and other commitments, and of the remainder a great proportion could be found through planned regeneration. There would remain a balance of 6000 dwellings, for which specific strategic provision might have to be made. HCC therefore sought to make strategic provision "on a contingency basis" for up to 6000 additional dwelling sites. Draft Policy 7 showed 5000 dwellings within the plan period being provided at Stevenage west of the A1(M). Of those dwellings 1000 were to be within SBC's boundary and the remainder within the boundary of North Herts District Council (NHDC). The Policy said that construction of dwellings would not be permitted to start until at least 2004, and in effect, not at all until it was clear they were needed.
4. The contingent nature of Policy 7 was challenged at the Examination in Public, held in March 1997. Developers and several District Councils, including SBC, objected to this limitation as creating an undesirable uncertainty in a situation where there were long lead times to planning development. The Panel concluded that -

"while it is just about possible to proceed on a contingency basis in entertaining local plan reviews/amendments and related work which would give effect to strategic proposals, it would be highly confusing to the public and interested parties and the procedure would lack credibility..... moreover, it is a fatal objection to such an approach in the case of green belt land, that "exceptional circumstances" could not possibly have been demonstrated at the initial stage, and the decision on whether development of Green Belt was justified on that criterion would have passed out of the Structure Plan context and be left entirely to HCC at a later stage."

5. This point relates to the important principle that once the general extent of the green belt has been approved it should be altered only in "exceptional circumstances". In order to justify a boundary alteration there has to be a demonstrable and, effectively, immediate need. The Panel held that this requirement would be met by the impossibility of otherwise making adequate and sustainable provision to meet the development need they foresaw. But if the need were so uncertain that the policy had to be expressed as subject to a contingency that might never be satisfied within the plan period, it could not justify a green belt alteration.
6. The Panel continued -

"However the more fundamental objection is that in the Panel's view there is no realistic prospect of progress with regeneration removing or diminishing the need for supplementary provision for 6,000 dwellings over and above the 15,000 covered by Policy 6 if the total 65,000 dwelling requirement is to be met, a requirement in the nature of a minimum or near minimum requirement. Given the long lead time in planning for such developments, and the need for as much certainty as practicable in structure planning, planning should begin on a firm basis without delay."

7. The Panel also considered the proposals for west Stevenage and the timetable within which they could be brought forward. The Panel examined the arguments about the number of completions that it considered it reasonable to assume by the end of the plan period. The Panel set out its recommendations for the revision of Policies 7 and 8. HCC accepted those recommendations and the Hertfordshire Structure Plan Review 1991 - 2011, adopted April 1998, incorporated policies accordingly. Policies 8 and 9, as adopted and renumbered, read as follows:

"POLICY 8 STRATEGIC LOCATIONS FOR SUPPLEMENTARY HOUSING DEVELOPMENT

Land suitable for strategic housing allocations, together with necessary associated development, will be identified in the following locations... and excluded from the Green Belt.

.....

Stevenage	West of A1(M)	1,000
North Hertfordshire	West of A1(M) at Stevenage	2,600

The planning of these developments will be brought forward through the review of the relevant local plans.

In the case of the development west of the A1(M) at Stevenage, the master plan will provide for:

i) an initial phase of 5,000 dwellings, some of which to be completed after 2011;

ii) in the longer term, a possible second phase of a further 5,000 dwellings.

Providing that 3,600 dwellings in the initial phase are planned to be built by 2011, the detailed dwellings split at this location between North Hertfordshire district and Stevenage Borough will be determined in the relevant local plans, informed by agreed master planning work to establish the most sustainable form of development.

POLICY 9 DWELLING DISTRIBUTION, 1991 TO 2011

Local plans will make provision in accordance with the development strategy as set out in policies 6, 7 and 8, for a net increase in the period 1991 to 2011 of about 65,000 dwellings distributed as follows:

.....

Stevenage

5,700

includes 1000 West of A1(M)

."

8. A year later SBC put on deposit the Stevenage District Plan, Second Review 1991-2011. Policy H2 identified an area of 93 ha called Stevenage West as allocated for an estimated 1,000 dwellings in order to meet the Structure Plan Housing requirement. Further specific guidance was given in Policies SW1 to SW10.
9. On the 24^th November the County Council wrote formally to inform Stevenage Borough Council that the deposit review plan was considered to be in general conformity with the Structure Plan Review.
10. The District Plan Review progressed to a second deposit draft in May 2001. Policy H2 now read -

POLICY H2: STRATEGIC HOUSING ALLOCATION - STEVENAGE WEST

IN ORDER TO MEET THE PROVISIONS OF STRUCTURE PLAN POLICY 8, LAND AT STEVENAGE WEST IS ALLOCATED FOR THE DEVELOPMENT OF APPROXIMATELY 1,000 DWELLINGS.

11. Policy H4 dealt with the phasing of the sites allocated in policy H2. It showed that in phase 2, from 2004 to 2008, 500 dwellings were expected in Stevenage West the remaining 500 were expected to come forward in phase 3, from 2008 to 2011.
12. The proposals map showed the area within SBC's boundaries, north of Norton Green, as the 'Stevenage West' development area. It was excluded from the Green Belt, although the Green Belt boundary in the NHDC area came up to the southern boundary of the development area and included Norton Green.
13. The revised deposit version of the plan, with some proposed modifications, moved towards a Local Plan Inquiry. A number of objections were made to the principle of Stevenage West and the consequent changes to the definition and extent of the Green Belt that flowed from it.
14. At the pre-inquiry meeting, on the 19th June 2002, Leading Counsel for SBC, defining the scope of the inquiry, said –

"There are a number of responses both to the deposit and the revised deposit versions of the local plan which question the appropriateness of the strategic housing allocation at Stevenage West ….. Indeed very recently it is understood that the County Council has proposed to issue a pre-deposit consultation document on possible alterations to the structure plan. The Borough Council has consistently responded to such objections by referring to the adopted Hertfordshire Structure Plan Policy 8 which allocates Stevenage West as a strategic housing allocation and to the fact that the local plan must be in conformity with the adopted structure plan."

15. He continued

"it would be wrong to delay the Local Planning Inquiry. Firstly, there is no present intention on the part of the Borough Council to withdraw its plan and secondly, the scope of the Inquiry could not be affected by any decision of the County Council. Indeed given the importance of meeting the identified housing need, delay at this stage would be likely to be harmful to the achievement of this aim. In conclusion, the Local Plan must be in general conformity with the adopted Structure Plan, which includes Stevenage West as a strategic Housing allocation. Consequently, the scope of this inquiry cannot include arguments, for example, that Stevenage West should neither be allocated nor developed during the plan period up to 2011."

16. HCC was indeed rethinking Policy 8. It claimed that recent work showed that the EIP had dramatically underestimated the scope for planned regeneration. It was clear, HCC felt, that there was no need for strategic green-field allocations within the plan period. So in July HCC published a First Consultation Draft Alterations 2001-2016 to the HSP. This document deleted former Policy 8 and replaced it with the bare statement that no strategic allocations would be identified in the review of Local Plans and no further strategic scale housing developments should be permitted anywhere in Hertfordshire. (I observe that this was a consultation document and thus did not amount to "proposals for the alteration of the structure plan", which would have triggered the provisions of section 46 (6) of the Town and Country Planning Act 1990.)
17. The Inquiry into the Stevenage District Plan Review opened in September 2002. HCC appeared as objectors to Policy H2, arguing that the Stevenage West proposals within the Stevenage area should be deleted and that the district plan would still remain in general conformity with the structure plan. SBC resisted those objections, submitting to the Inspector that a Local Plan without Stevenage West in it could not be in general conformity with the Structure Plan.
18. The NHDC had also been preparing a local plan to allocate that part of Stevenage West within their area but their response to the County Council's changed attitude had been to withdraw their local plan completely. (That this was action the local planning authority was entitled to take was decided by Collins J. in Persimmon Homes v North Hertfordshire District Council [2001] EWHC 565.)
19. In July 2003 the Local Plan Inspector's report on objections to the Local Plan was received. He examined the reassessed countywide capacity estimates and noting the objections to the County Council's views, he said it was beyond his remit to reach a view on such a matter.
20. He continued:

"3.59 As the need for this development has been justified strategically, I consider it can only be reassessed as part of a similar strategic exercise. Until that strategic exercise has been carried out, an exercise that will need to take into account the revised policy approach to the selection of new housing development that is promoted in national policy guidance, there must be at least some uncertainty on the strategic justification for the development.

3.60 In order to be in general conformity with the adopted Structure Plan I consider this Local Plan should identify the land necessary to provide about 1000 dwellings as required by the Structure Plan. ... At the same time, in order to reflect the current uncertainty, that identification should however be caveated by a statement that makes it clear the formal release of the land for development is dependent on completion of a strategic evaluation of the proposed development determining it continues to be needed. The necessary evaluation could be carried out as part of the preparation of the emerging Review Structure Plan. If development of the land continues to be justified strategically, then the formal release of the relevant land in the form of granting planning permission can be considered. If that justification is not confirmed, this Local Plan will need to be reviewed to delete the proposed development. In this latter event it will also be necessary to make changes to the Plan, particularly to Chapter 12, but also associated changes to matters related to the west of Stevenage development, such as to the Plan's transport, Green Belt, countryside and employment provisions.

3.61 I consider this approach would ensure that previously-developed sites in urban areas are developed before green field sites. In this way the Plan would be consistent with a main thrust of the plan, monitor and manage new policy direction advised in PPG3 and as expanded in the DETR publication 'Planning to Deliver'."

21. He dealt with the arguments about conformity thus:

"It is argued that a version of the Plan amended in this way would remain in general conformity with the Structure Plan. The proposed development has been justified strategically in the light of the sustainability provisions of Policy 1 in the adopted Structure Plan and represents an important part of the strategic policies/proposals of that Plan. To remove the relevant part of that growth from this Local Plan would in my view pre-judge the outcome of a proper re-appraisal of its strategic justification, an exercise that could be carried out within the context of reviewing the Structure Plan. The County-wide considerations cannot properly and fully be assessed as part of this Local Plan. I cannot therefore accept that removal from this Local Plan of part of the development proposed to the west of the A1 (M.) at Stevenage that is proposed in Policy 8 of the adopted Structure Plan as a strategic Housing allocation, would result in a Local Plan in general conformity with that Plan. Removal of the proposed development would represent a material change to the structure plan's proposals."

22. He said he had formed the following views: --

"Firstly, in order for this Local Plan to be in general conformity with the adopted Structure Plan it must satisfy Policy 8 of that Plan and identify land west of the A1(M) for the development of about 1,000 dwellings.

Secondly, there is considerable uncertainty over the strategic justification for that development, particularly given the national planning policy guidance introduced by PPG 3. Given that uncertainty, the Local Plan should make it clear that the identified land cannot be granted planning permission for the proposed development until and if the strategic justification for it has been reconsidered and accepted. If the strategic justification for the development is not made, either in the emerging Structure Plan or within some other framework, then this Local Plan will need to be the subject of a review to delete that part of the proposed new settlement west of the A1(M) at Stevenage or otherwise to respond to the revised strategic policy context.

Thirdly, other provisions of the plan that relate to Policy H2 will also need to be changed to remain consistent with this approach. For example, given the current uncertainty referred to above and the suggested policy change I have considered it unlikely that 500 dwellings could be completed within West of Stevenage up to 2008. Policy H4 should therefore be amended to indicate the completion of 400 dwellings up to 2008, with 600 between 2008 and 2011.

Finally, I consider this approach would ensure the Local Plan remained in general conformity with the adopted Structure Plan whilst reflecting the changes in circumstance, such as the publication of PPG3, that have occurred since the Structure Plan was adopted. It would therefore most appropriately respond to the current situation."

23. The clear inference to be drawn from the Inspector's third conclusion (above) is that he did not think that the caveat he was introducing was likely to mean more than a later start to the strategic housing development. He still contemplated that it would all come forward within the plan period.
24. In the meantime, in the spring of 2003, HCC had pressed ahead with a Deposit Draft version of the Structure Plan alterations and had consulted the Government Office for the Eastern Region (GOER). On the 15th of April 2003 GOER replied, querying the point of taking the alterations any further forward in the light of the uncertainties about the state of long-term housing need and the continuing work to address them. The letter also commented "As a result of this uncertainty, we also question whether it is prudent to omit strategic greenfield reserves which may be needed to meet longer-term housing requirements during the Structure Plan period."
25. HCC decided not to proceed to an EIP and the deposit draft document does not seem to have gone significantly further. I am told that it will not now do so. (It follows that passages in paragraph 3.2.13 of the adopted explanatory text, (below) are no longer accurate.)
26. But the Stevenage Local Plan Second Review did make progress. Modifications were proposed which followed the Inspector's recommendations. To these the Claimants objected. (I note that it was their first opportunity to enter the argument.) SBC considered the objections and recorded the Claimant's stated intention of seeking to quash the plan if it were to go ahead in its proposed form. Nonetheless the Council resolved to adopt the policies as they were proposed to be modified and on the 8^th of December 2004 the Stevenage Borough Council District Plan Second Review was adopted. As finally adopted Policy H2 read as set out below. (The underlining indicates those passages that the Claimants seek to quash).

POLICY H2: STRATEGIC HOUSING DEVELOPMENT STEVENAGE WEST

In order to meet the provisions of Policy 8 in the adopted Structure Plan, land at Stevenage West is identified for the development of approximately 1000 dwellings. The allocated land is safeguarded from development pending reconsideration and acceptance of its strategic justification.

3.2.11 ....

3.2.12 ....

3.2.13 the Structure Plan is currently being reviewed in the light of the material changes that have occurred since it was adopted in 1998, including the need to take into account the provisions of PPG 3. That exercise will reassess the justification for the strategic development west of the A1 (M.) at Stevenage. Only if that review of the Structure Plan or an alternative form of reconsideration of the strategic need for the development determines that Stevenage West is required to meet the County's development needs up to 2011 can the site be considered as allocated and available to be released for development. If the Review Structure Plan or alternative form of reconsideration does not justify development of the land up to 2011, it will be necessary to review this Local Plan to take account of the revised strategic policy context.

27. A planning application has been made to SBC in relation to the development area of Stevenage West. That application was called in by the Secretary of State for his determination and an inquiry has been held. No decision has yet been announced.

THE LAW

28. It was an important principle of the Town and Country Planning Act 1990, s.54A, that-

"Where,….regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."

29. From 28^th September 2004, this principle has found expression in s.38 of the Property and Compensation Act 2004 in almost the same words. I shall set out the whole of the section.

Section 38 Development Plan

(1) A reference to the development plan in any enactment mentioned in subsection (7) must be construed in accordance with subsections (2) to (5).

(2) …….

(3) For the purposes of any other area in England the development plan is-

(a)….

(b) the development plan documents (taken as a whole) which have been adopted or approved in relation to that area.

(4) ….

(5) If to any extent a policy contained in a development plan for an area conflicts with another policy in the development plan the conflict must be resolved in favour of the policy which is contained in the last document to be adopted, approved or published (as the case may be).

(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.


(7) The enactments are-

(a) this Act;

(b) the planning Acts; ….

(8) (1) During the transitional period a reference in an enactment mentioned in section 38(7) above to the development plan for an area in England is a reference to-

(a) …

(b) the development plan for the area for the purposes of section 27 or 54 of the principal Act."

30. Schedule 8 says that-

"1(1) During the transitional period a reference in an enactment mentioned in section 38(7) above to the development plan for an area in England is a reference to –

(a) …

(b) the development plan for the area for the purposes of section 27 or 54 of the principal Act.

(2) The transitional period is the period starting with the commencement of section 38 and ending on whichever is the earlier of

(a) the end of the period of three years;

(b) the day when in relation to an old policy , a new policy which expressly replaces it is published ,adopted or approved."

So the effect of the legislation is to continue the old development plan for a transitional period of no more than three years from 24^th September 2004.

31. Another vitally important principle reflected the scheme of the earlier legislation that the development plan was comprised of the strategic Structure Plan, prepared by the County Council outside urban areas, and the Local Plan that translated it into effect within the Districts and Boroughs. This was the principle that the Local Plan should be in 'general conformity' with the structure plan. Section 36 of the Town and Country Planning Act 1990 provided

36 (1) the local planning authority shall within such period if any as the Secretary of State may direct, prepare for their area a plan to be known as a local plan.

(2) a local plan shall contain a written statement formulating the authority's detailed policies for the development and use of land in their area.

....

(4) a local plan shall be in general conformity with the structure plan.

....

(6) a local plan shall also contain-

(a) a map illustrating each of the detailed policies; and

(b) such diagrams, illustrations or other descriptive or explanatory matter in respect of the policies as may be prescribed,

and may contain such descriptive or explanatory matter as the authority think appropriate.

32. Section 43 dealt with the adoption of the local plan, providing in section 43 (3) that " the authority shall not adopt any proposals which do not conform generally to the structure plan." Section 44 provided that the Secretary of State might direct that the proposals, or any part of them might be submitted to him for his approval.
33. Section 46 dealt with conformity between plans by giving the structure plan authority the power to issue, or refuse to issue, a certificate of general conformity. The Local Plan Authority had to serve on the Structure Plan Authority a copy of their proposed plan and allow 28 days to elapse. Then, where the Structure Plan Authority had been served with a copy –

"they shall, before the end of any period prescribed for the purposes of that subsection, supply the authority responsible for the local plan with-

(a) a statement that the plan or the proposals are in general conformity with the Structure Plan; or

(b) a statement that the plan or the proposals are not in such conformity.

(3) a statement that a plan or proposals are not in such conformity shall specify the respects in which the plan or proposals are not in such conformity.

(4) any such statement shall be treated for the purposes of this Chapter as an objection made in accordance with the regulations."

34. Section 46 (6) continued-

Where-

(a) a local planning authority proposes to make, alter or replace a local plan;

(b) copies of proposals for the alteration or replacement of the Structure Plan for their area have been made available for inspection under section 33 (2); and

(c) the authority mentioned in paragraph (a) include in any relevant copy of the plan or proposals a statement that they are making the permitted assumption, the permitted assumption shall, subject to subsection (9), be made for all purposes (including in particular any question as to conformity between plans).

(7) in this section "the permitted assumption" means the assumption that-

(a) the proposals mentioned in subsection (6) (b); or

(b) if any proposed modifications to those proposals are published in accordance with regulations made under section 53, the proposals as so modified,

have been adopted.

…..

(10) the provisions of a local plan prevail for all purposes over any conflicting provisions in the relevant Structure Plan unless the local plan is one-

(a) stated under section 35C not to be in general conformity with the Structure Plan; and

(b) neither altered nor replaced after the statement was supplied.

35. It will be recalled that under section 7 (1) (as amended) of the Town and Country Planning Act 1971, the County Planning Authority was required to prepare and submit a structure plan, formulating general policies, and the District or Borough councils, in their turn, were required to produce local policies in a local plan, subject to the same requirement that the Local Plan be in general conformity with the Structure Plan. (see Section 11 (4)) If so satisfied, the County Planning Authority was required to issue its certificate to that effect. But if not the Local Plan could not proceed further. The matter had to be referred to the Secretary of State for decision. He had the power to direct the County to issue a certificate, or issue one himself, or direct the local planning authority to revise its proposals. Substantial reforms were made in 1992 by the amendment of the 1990 Act. The system was changed for the future but approved structure plans in force at the commencement of the new act were continued and provision was made for their replacement or alteration. (Sections 31 and 32.)
36. It was foreseen that both structure and local plans would require alteration and replacement and the principles of conformity and priority between plans were dealt with in statute to cover such changes. Thus a Structure Plan authority that adopted or approved an alteration or replacement structure plan was required to notify the local planning authority in their area that the local plan was or was not in general conformity with the altered structure plan. (Section 35C) A statement that the local plan was not in conformity with the structure plan then the meant that the rule that the provisions of the local plan prevailed in the case of conflict did not apply until the local plan was altered or replaced (section 46 (10)).
37. What 'general conformity' or 'conform generally' mean seems never to have been considered in the authorities. I have been referred to the definitions of the words in the Shorter Oxford English Dictionary. The most apt definition of 'general' is probably 'including the main features, elements, etc and neglecting or ignoring unimportant details or exceptions' and of 'conformity' perhaps ' compliance with'. Mr Straker urges, 'agreement in character'. I did not feel the dictionary definitions helped the process of analysis very much. The approach of the Local Plan Inspector seems to have been that to be in general conformity the plan must be "consistent with a main thrust of the (structure) plan" and not "represent a material change to the structure plan's proposals" but at the same time it could and should reflect the changes in circumstances since the structure plan was adopted. This sounds sensible and pragmatic
38. Some indication that the test of general conformity is comparatively strict might be drawn from certain statutory provisions. As is set out above, section 46 (6) permits the Local Planning Authority to make the "permitted assumption" where the Structure Planning Authority have prepared proposals for the alteration or replacement of the Structure Plan and have made them available formally under section 33 (2). The "permitted assumption" is that the proposals, or the proposals as proposed to be modified, have been adopted. On that "permitted assumption" the local authority is bound to develop its own proposals in conformity with the Structure Plan as proposed to be altered. But, by the same token, it would seem that it would not be permissible to make the same assumption if the structure plan alteration has not got to the specified stage, as in the present case. It might fairly be said, of course, that there is a difference between making an assumption in a plan, and making an allowance in a plan for a possibility.
39. The Planning and Compulsory Purchase Act 2004, schedule 8, paragraph 11, provides that-

"11(1) this paragraph applies if the Secretary of State thinks-

(a) that the conformity requirement is likely to give rise to inconsistency between the proposals and relevant policies or guidance, and

(b) it is necessary or expedient to avoid such inconsistency.

(2) the Secretary of State may direct that to the extent specified in the direction the conformity requirement must be ignored.

40. This provision suggests that it is contemplated that the local planning authority may have to follow the structure plan in the interests of general conformity at the expense of consistency and compliance with government policy. The local plan authority cannot simply resolve the inconsistency with an aging structure plan by a degree of purposive nonconformity.

SUBMISSIONS

41. On behalf of the Claimants Mr. Purchas submitted that Policies 8 and 9 of the Structure Plan are unconstrained. Those policies say that land will be identified and excluded from the Green Belt. The contingency to which it was sought to subject Policies 8 and 9 was struck out, for good reason. Policy H2 of the District Plan Second Review has reintroduced a contingency which is objectionable for virtually the same compelling reasons. The contingency may or may not be satisfied at some date in the plan period. Policy H2 expressed in those tentative terms cannot be said to be in general conformity with the clarity and certainty of the Structure Plan.
42. Whether or not a provision is in general conformity with the Structure Plan is a matter for the Court to determine objectively. It is not something to be left to the discretion of the local plan authority, only to be interfered with by the court on Wednesbury principles. The requirement for general conformity is set out in mandatory terms and several provisions of the Acts suggest that it is a matter to be interpreted strictly. Such an interpretation, he argued, was in line with the dictionary definitions.
43. Mr Purchas emphasised the submissions of counsel for SBC, at the local plan inquiry, resisting the argument advanced by the County Council and others that the principle of development west of Stevenage should be re-examined. SBC should stick by their own arguments.
44. Section 38 (6) requires determination in accordance with the development plan, unless material considerations indicate otherwise. There is a significant advantage, he argued, in being able to demonstrate to the Planning Authority or to the Secretary of State that proposals are in accordance with the development plan, although material considerations may raise some doubt about their immediate implementation. The position where the proposals are not in accordance with the development plan, although they may be said to be supported by material considerations, is significantly weaker. What may seem comparatively fine distinctions in the wording of the plan are not trivial; they can make a difference.
45. In practical terms, a long lead time is necessary to put in the infrastructure and to build the large number of dwellings the Structure Plan requires. No consortium of developers would contemplate starting development, putting in expensive infrastructure, unless they were confident of a planning permission that would enable them to move on to the development of houses within a predictable timescale. Policy H2 should be amended by deleting the underlined words and thus removing the contingency.
46. Mr Straker, for the defendant, submitted that general conformity meant simply that the proposals of the local plan should be in character with the Structure Plan policies. The Act itself contemplated that a generally conforming local plan might still have provisions which conflicted with the Structure Plan, as section 46 (10) showed. The Structure Plan and the local plan could be years apart and in the meantime policies might change dramatically. Parliament cannot have intended that the Structure Plan could stultify the local plan by requiring that it should do more than broadly reflect the character of the Structure Plan. He examined the Act and pointed to provisions that he felt implied a measure of flexibility.
47. The Court's approach should be to determine the permissible scope allowed by the words 'general conformity'. If, as he submitted, the action taken by SBC fell within the permissible range, the Court should be slow to interfere. Just as making a determination in accordance with the plan always involves judgment and a balance between policies, so should the formulation of those policies in conformity with the structure plan.
48. Mr Straker particularly relied on Ouseley J. in the case of J. S. Bloor Ltd v. Swindon Borough Council and others [ 2001] EWHC Admin 966. Ouseley J. said-

"107. The task of statutory construction here requires a court to discern and express the meaning of the statutory provisions, their scope or limits, or defining characteristics. I put it that way because the phrases in question do not readily permit of the expression of their true construction by a process of substitution of more or different words. It is easier to set out what are the characteristics which define the concept, in its statutory context, or rather to identify whether a particular characteristic is within or without the statutory concept.

108. Once the Court has determined, as a matter of law, the scope of the phrase "general policy," the decision of whether a particular policy is within its scope is a matter for the decision maker provided that he has correctly directed himself as to its scope, or its defining characteristics and not by reference to irrelevant characteristics or considerations, and has reached a decision which falls within the scope of the phrase as a matter of law. It is not a question of whether his interpretation is reasonable and therefore right. It is a question first of statutory construction and then of application: what is the scope of the statutory phrase? Does the policy fall within its scope? Both questions are for the Court but the latter is answered by a review of the application of the true scope of the phrase to the facts, rather than a primary decision by the Court. If the policy is reasonably regarded as falling within the true scope of the phrase, there is a duty to include it in the Plan.

49. Mr Straker also referred me to the case of R. v. Derbyshire County Council, ex p. Woods [ 1997] JPL 958. Brooke LJ said-

"If there is a dispute about the meaning of the words included in a policy document which a planning authority is bound to take into account, it is of course for the court to determine as a matter of law what the words are capable of meaning. If the decision maker attaches a meaning to the words they are not properly capable of bearing, then it will have made an error of law, and it will have failed properly to understand the policy (Horsham DC v. Secretary of State for the Environment [1992] 1PLR81, per Nolan LJ at 88) if there is room for dispute about the breadth of the meaning the words may properly bear, then there may in particular cases the material considerations of law which will deprive a word of one of its possible shades of meaning in that case as a matter of law.

This in my judgment, is the underlying principle of law which Auld J was putting into words in his judgment in Northavon D. C. v. Secretary of State for the Environment [ 1993] JPL 761. When discussing the meaning of the expression "institutions standing in extensive grounds", the report reads at 763:

"The words spoke for themselves and were not readily susceptible to precise legal definition. Whether a proposed development met the description was in most cases likely to be a matter of fact or degree and planning judgment. He [the judge] said "in most cases" because it was for the Court to say as a matter of law whether the meaning given by the Secretary of State or one of his Officers or Inspectors to the expression when applying it was outside the ordinary and natural meaning of the words in their context. See Gransden v. Secretary of State for the Environment (1987) 54 P. & CR86 per Woolf J., as he then was ( upheld by the Court of Appeal [1987] JPL 465). The test to be applied by the court was that it should only interfere where the decision-maker's interpretation was perverse in that he has given to the words in their context a meaning that they could not possibly have all restricted their meaning in a way that the breadth of their terms could not possibly justify."

50. Mr Straker said that on the facts of the case it was highly desirable for SBC to say something in Policy H2 about the change in circumstances. The local plan was there to tell the public and developers what the local planning authority's proposals were. If there were likely to be important qualifications to policies, the plan ought to say so. That was clearly the view of the Local Plan Inspector. He recommended a change to the wording of the policy. SBC accepted his recommendation and drafted the policy as he recommended it should be worded.
51. Mr Straker drew attention to the Claimants' skeleton argument (paragraph 61 (b)) in which it seems to be accepted that noting in the supporting text to Policy H2 matters that may be material as planning considerations would be lawful. Section 36 (6) makes it clear that "explanatory matter", such as noting matters that may be material as planning considerations, is part of the local plan and therefore part of the 'development plan' for the purposes of section 54A or section 38 (6). The distinction that the claimants seek to draw is not there.

THE INTERPRETATION OF "GENERAL CONFORMITY"

52. The correct approach is expressed with clarity by Ouseley J. in the case of Bloor. paragraphs 107 and 108 It is true in this case that the task of interpretation will not be far advanced by substituting further words. But there are some conclusions that may be drawn. The Act did not require "conformity" but "general conformity". The word "general" is there to introduce a degree of flexibility. Of the SOED definitions, the most apt meaning of "general" seems to me to be "including the main features and elements and neglecting unimportant details or exceptions". Even those words cannot be transplanted to a planning context without some reservation. There may be some details or exceptions that, in my view, may properly be left to the local plan, yet which cannot be said to be 'unimportant'. Attempts to define "General conformity" in different words probably only illustrate the point made by Ouseley J., that adding more and different words just postpones the problem of definition. The question becomes: what is a main feature, as opposed to an unimportant detail or exception? What is a "material change" to the policies as opposed to an immaterial one? The better approach is to consider whether the words actually used are objectively capable of falling within the scope that the words "general conformity" leave open to the local planning authority.
53. It is not unusual for further work or new thinking to put a question mark over a comparatively old structure plan policy. I think Mr Purchas is right to say that the legislation cannot contemplate that the words "general conformity" allow much flexibility to accommodate important adjustments through the Local Plan, otherwise s.46(6) of the 1990 Act and Schedule 8, paragraph 11of the 2004 Act would hardly be necessary. I do not find section 46(10) very convincing the other way. To read in 'general conformity' as simply meaning that the proposals of the Local Plan should be 'in character' with the Structure Plan seems to me to be much too broad. But not all unresolved questions are equally important or need recording in the same way. While the requirement that the Local Plan should be in general conformity with the Structure Plan is an important legislative purpose, there are other purposes. The local plan is there to inform and guide local planning decisions. The guidance of the Local Plan is likely to be of considerable significance to local investment and to choices made about the pattern of local development and the environment. It is desirable in the public interest that the Local Plan should address relevant issues and do so as accurately and fully as it reasonably can. The word 'general' is likely to have been put in to make it clear that, to a degree, the need for conformity may be balanced against the need for the local plan to take account of and explain the circumstances in which the strategic policy will be given effect. In the first instance it will be for the local planning authority to decide how to strike this balance subject, of course, to the power of the Secretary of State to direct them to prepare proposals for alteration or to direct that the proposals they have prepared should be submitted to him for approval. (See section 39 (2) (b) and section 44 (1) and 45.)
54. A District Council who take objection to putting forward a policy which, although in strict conformity with the Structure Plan, is likely, in their view, to be shown to be seriously misconceived, have the option of withdrawing their proposals. This is what NHDC did. The absence of a local plan policy cannot be criticised on the basis of non-conformity. It may be criticised for other reasons. Silence may not be of much assistance in guiding the proper planning of a District Council's area but the District Council may judge it to be the best response if it has serious doubts about the current relevance of a particular Structure Plan policy and the alternative is to adopt a conforming policy which it believes would be seriously misleading..
55. On the other hand, a local planning authority who judge that, although there is a reason for caution, it is unlikely to affect the basic correctness of the Structure Plan policy, may reasonably choose, it seems to me, to adopt a local policy that generally conforms with the Structure Plan but sets out a particular reservation, qualification or reason for caution in respect to that policy. Which course is best will depend upon the balance, as each council sees it, between the likelihood that the Structure Plan policy will not prove to be soundly based and the desirability of having a local plan that sets out policies for their area in a realistic and fair way. The Local Plan authority that chooses to take the latter course will have to ensure that its plan is in general conformity with the Structure Plan. The proposition that the principle of general conformity allows the local plan nothing between a bare and misleading repetition of the structure plan policy on one hand or silence, on the other, would be unattractive.
56. At one end of the range, if the local planning authority's judgment is that it is likely that further work will show that a Structure Plan strategic housing allocation is not justified at all, it would seem unhelpful to promote a proposed policy that said, without qualification, that land should be allocated to meet it. Equally, to allocate land for strategic housing in terms that were so qualified that it was clear that the allocation was considered unlikely to be translated into planning permissions during the plan period would not, it seems to me, be in general conformity with a Structure Plan policy that required allocation. In such a case silence or the withdrawal of proposals, would probably be the only sensible course. At the other end of the range, for a council to allocate land required for a strategic housing provision within the plan period, confident in the need for it, but to add a caution that for reasons, for example, to do with the proper development of the urban land in the borough, the local planning authority would oppose development starting before a specified time into the plan period, would be in general conformity with the Structure Plan, in my judgment.
57. Within that broad range of action lies the narrower range of policy that would be in general conformity with the Structure Plan. On the facts of the present case, the need for the Local Plan to reflect the uncertainty about the provision of 1000 dwellings at Stevenage West was argued at the Local Plan inquiry (though not with the participation of the Claimants) and expressly addressed by the Local Plan Inspector. He recommended the wording of Policy H2 - and consequently H4 - that the SBC adopted. It is tolerably plain that he did not think or intend that his formulation would be taken as meaning that the strategic provision might not go ahead at all in the plan period. Indeed he recommended that there was justification to amend the boundary of the Green Belt to accommodate that provision. I think the words of Policy H2 need to be read in their context.
58. If Policy H2 had been expressed as the Claimants wish, with the underlined passages deleted, and no caveat or qualification by way of explanation, it would have been misleading. If Policy H2 had been worded without the underlined words but had then, in the explanatory text recorded both the Inspector's conclusion that the land could not be granted permission until the strategic justification for it has been reconsidered and accepted, and SBC's acceptance of that conclusion, I think that would have been in general conformity with Structure Plan Policy 8. The wording would simply have recorded the facts. While I am not sure that Mr Purchas actually accepted that proposition, he did say that such a position might be acceptable in that the qualification would not be in the wording of the policy itself but in the explanatory text, which could be taken into account as a material consideration.. But, as Mr Straker emphasised, in a local plan the explanatory text is part of the plan in accordance with which the determination is to be made, for the purposes of sections 54A of the 1990 Act or 38 of the 2004 Act. The distinction between such a wording and the actual wording of the adopted Policy H2 is fine.
59. It is difficult to define the scope of the statutory phrase 'in general conformity' as a matter of universal principle; it is easier to decide whether specific policies come within it. However it seems to me that, judged objectively, the words are wide enough to encompass a reproduction of the structure plan policy in the local plan, subject to a qualification as to justification or timing that nonetheless contemplates that the purpose of the strategic policy may be achieved in the plan period. The way the SBC have worded Policy H2 and its explanatory material does fall within the scope of the phrase. The application on Ground 1 therefore fails.

GROUND 2

60. The claimants properly made an objection to the plan as proposed to be modified in respect of the Green Belt boundary near Norton Green to the south of Stevenage West. They argued for more of the area to be excluded from the Green Belt than was proposed in the plan. The Claimant's objection to that was heard at the Local Plan Inquiry. The Inspector was, of course, obliged by law to consider that objection. Unhappily, there is no sign that he did so, since the objection was not addressed at all in his report.
61. It is common ground between the Claimants and the defendant SDC that there has been an error of law in the adoption of the plan. The issue for decision is whether or not, in the exercise of my discretion, I should quash the plan so far as the relevant area is concerned. One might suppose that to quash the relevant part of the Second Review District Plan would simply mean that the situation would revert to what it was before the Second Review process started: the land would have the planning status it had at the beginning of the review, namely it would be green belt. But that, it is agreed, is not the law. The matter was considered in the case of Charles Church Developments Ltd v South Northamptonshire District Council (1999, 26th May). Hidden J. accepted the argument that on the true construction of section 287 of the 1990 Act the Council must start the process afresh for the quashed parts of the Plan. Reasons of convenience, although compelling up to a point, could not be determinative. He continued

"There are a wide range of defects which may occur in the plan process which make it impossible to state that a Planning Authority must revert to a single point in the process, other than its inception. For example, in the present case the defect occurred at the modification stage. However, in (Laing Homes Ltd v Avon County Council [1993] 67 P. & CR 34) at page 56, the fault occurred at the Inquiry Inspector's Report stage. It is possible that defects could occur along the length of the plan process, and the lack of a single fixed point other than inception strongly underlines the logic of the construction argument which Mr Elvin had submitted.

The absence of a single fixed point other than inception to which the process should revert after quashing, would allow for undesirable differences in opinion to arise between the Planning Authority and the objectors as to the appropriate time."

62. Hidden J. accepted the submission that the Council was not entitled to revert to any stage of the planning process other than to commence new proposals for the alteration and replacement of the Plan as adopted, leaving out the quashed parts.
63. Applying that to the circumstances of this case means that the land in question would not be notated as Green Belt, as it was at the start of the Review process but would be " white land", that is land as it was at the start of the Local Plan process, without any special policy protection. This, submits Mr Straker, would be to give the Claimants a policy advantage they do not deserve. If it does, responds Mr Purchas, the problems are of the Council's own making in that they adopted the plan in full knowledge of the likely consequences. He showed me the Council's report of 24th of November 2004 which, at paragraph 4 .16 reads:

"Should the court choose to quash all or part of the plan, those quashed parts are treated as if they had never been included in the plan when it was deposited but any remaining un-quashed parts of the plan retain adopted status. It is not considered likely that a successful legal challenge to the plan can be sustained. However should all or part of the plan be quashed the council will have the power to bring forward again -- through the new Local Development Framework (LDF) -- any policies all proposals that are quashed."

64. I have been assisted by an agreed joint note on the provisions of the 2004 Act as they relate to bringing forward plans for part of the local authority's area. It is clear to me from an examination of sections 15 (2) (a) and (b) and 17(3) of the Planning and Compulsory Purchase Act 2004 that the Council does have the power to bring forward new proposals for a part of its area in respect of which the plan has been quashed: it is not necessary to bring forward a plan for the whole of its area. When and if it does so, the Claimants will have statutory rights to have any objection heard. I appreciate that the process may take some time but I do not find that a very compelling objection in the circumstances. It will have to be accepted. If an application is made the decision maker will have regard not only to the notation on the Proposals Map but also to the history of that notation and all the other surrounding circumstances.
65. I therefore quash the Proposals Map in so far as it identifies the detailed boundary of the Green Belt to the south of the land allocated for development at Stevenage West so as to include Norton Green within the Green Belt.