IN THE HIGH COURT OF JUSTICE CO/5990/2008
ADMINISTRATIVE COURT
between:-
the queen
(on the application
of THE BARD CAMPAIGN
and
DAVID BLISS)
Claimants
-and-
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
Defendant
-and-
WESTON FRONT
Interested Party
Hearing date: 22nd/23rd January 2008
Advocates: Anthony Crean Q.C. and Tim Sheppard
Time estimate for hearing: 2 days
Time estimate for essential reading: 1 day
Essential reading: to follow
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SKELETON
ARGUMENT: INTERESTED PARTY
|
INTRODUCTION AND SUMMARY
1.
The
expressions “Weston Front” and “Local Community” are effectively
interchangeable. Weston
Front (“WF”) is led – magnificently – by a Solicitor who is a non-practicing
consultant. It has a loose assembly of
people to call upon who have or have had some professional expertise in some of
the many technical areas which are engaged by this matter. They give such time as they are able to for
free and on an ad hoc basis. There is no
consistently available expert legal advice to call upon and no resources or
none to speak of. These are quiet, law
abiding people who look after themselves and their families and who do not wish
to draw attention to themselves.
2.
The
Defendant is a Department of State.
3.
WF
finds itself in a position of confrontation with the Defendant. It is not a confrontation which WF has sought
and they regard this confrontation as a deeply unwelcome intrusion into their
lives.
4.
It is
a classic David v. Goliath confrontation. Nevertheless, it is imperative that WF wins this
confrontation in order to preserve the quality of life they presently
enjoy. If Weston Otmoor is built, the
rural community and lifestyle would be removed from Weston-on-the Green and
many adjacent small villages. This becomes clear when the nature of what the
Defendant proposes is examined. The
Weston Otmoor eco-town proposes the erection of 15,000 houses together with
schools, shops, business facilities and transport infrastructure abutting and
in the immediate vicinity a small village called Weston-on-the-Green. It is a sufficient indicator of the scale of
the impact of this proposal on Weston-on-the-Green that the Defendant’s Review
Assessment Summary requires that local sewage infrastructure will have to increase
its capacity by 100 fold to accommodate the development. Nothing
more need be said in these proceedings about the scale of the impact of these
proposals on the living circumstances of the local community. It explains why they are so concerned about
these proposals and why they are so keen to engage in every aspect of the
formulation of the policy and plans which seek to bring forward these proposals
so as to prevent them. They wish to
bring about a situation where it is all quiet on the WF.
5.
So far
so normal. This type of confrontation happens
in the planning system all the time. The
system is designed to resolve this type of conflict and none of this by itself
provides any basis for granting the relief sought in these proceedings. It does, however, provide the essential
context for what follows.
6.
This
Defendant has, for the last twelve years, proclaimed its intention to place
local communities at the heart of the planning process so that they may be
fully engaged at every stage in the formulation of policies, plans and
proposals which affect their area. It
has done so in documents which are too numerous to particularise. The effect
of this is to constitute a promise that WF will be fully engaged in:
(i)
the
formulation of the policy on eco-towns; and
(ii)
the
promotion of the eco-town proposal at Weston Otmoor.
7.
The
way in which the Court gives effect to this promise – holds the Defendant to it
– is through the doctrine of legitimate expectation.
8.
The
reality experienced by WF is very different from the Defendant’s grandiose
public pronouncements. WF has had to
plead and cajole the Defendant for information on these matters which has been
reluctantly and sparingly provided. Such
information as it has pleased the Defendant to throw at WF has been picked up
and carefully examined and found to be wrong in the most fundamental respects.
9.
WF has
not been provided with any opportunity to address the question of principle
which, in any event, has been pre-determined by the Defendant.
10.
WF has
not been told of a single set of locational criteria which determine the siting
of the eco-towns. Insofar as WF is aware
of different sets of criteria, they are inconsistent with each other and have
been inconsistently applied in the site selection process.
11.
WF has
not been told of the nature and circumstances of the 42 locations which have
been rejected so it has not been possible to engage in a rational and fair
comparison of reasonable alternative sites.
This is important given that only a finite number of eco-towns will be
selected.
12.
WF has
a legitimate expectation that it would be permitted to meaningfully engage with
the Defendant on all of these matters. The Defendant has wrongfully and
unlawfully denied WF any such opportunity.
13.
Alternatively,
by reason of these matters, the Defendant has unlawfully failed to carry out a
proper consultation into these matters.
14.
On
either or both of these grounds it is proper to grant the relief sought in
these proceedings.
THE
SHOW STOPPER EPISODE
15.
It has
been decided to treat this matter separately because of what it reveals about
this Defendant.
16.
The WF
site was in possession of two “show stoppers”; an expression intended to convey
a factor which immediately brought an end to any further consideration of the
site as a candidate eco-town. Firstly, Wendlebury
Meads and Monsmoor Closes SSSi and secondly, an exceptionally poor transport
assessment.
17.
These
factors provided WF with their strongest argument against any further
consideration of Weston Otmoor as an eco-town site – and the Defendant knew it.
18.
The
Defendant therefore decided to hold secret meetings with the promoter of the
Weston Otmoor eco-town in order to deal with these matters. The Defendant knew WF had been in existence
for six months at the date of these meetings but it was careful to ensure that
WF did not know these meetings were taking place and certainly did not invite WF
to attend. BBOWT is the local Wildlife
Trust with an obvious interest in the SSSi matter. They were also not invited
to attend.
19.
No one
knows who said what to whom at those meetings because no one took a note. No one knows why no one took a note. It is therefore not possible to say that no
one took a note because someone was concerned that such a note may have to be
disclosed in some later proceedings.
20.
All we
do know is that as a direct result of the secret meetings the show stoppers
were suddenly no longer show stoppers.
21.
This
Court can and should regard the show stopper episode as a sufficient basis in,
and of itself, to grant the relief sought in these proceedings. To do otherwise is to implicitly endorse the
procedure adopted by the Defendant to overcome the show stoppers at Weston
Otmoor.
22.
Alternatively,
and in the light of the show stopper episode, WF now seeks an order in the
terms of paragraph (iii) of the claim with an appropriate modification for
Weston Otmoor. The Order sought is:
A declaration having the effect of revoking
the selection of Weston Otmoor as a candidate eco-town”.
LEGAL CONTEXT
LEGITIMATE
EXPECTATION
23.
The Claimant refers to Laws LJ in Nadarajah v. SOS Home Dept.
[2005] EWCA Civ 1363 para 68:
“The search
for principle surely starts with the theme that is current through the
legitimate expectation cases. It may be expressed thus. Where a public
authority has issued a promise or adopted a practice which represents how it
proposes to act in a given area, the law will require the promise or practice
to be honoured unless there is good reason not to do so. What is the principle
behind this proposition? It is not far
to seek. It is said to be grounded in
fairness, and no doubt in general terms that is so. I would prefer to express it rather more
broadly as a requirement of good administration, by which public bodies ought
to deal straightforwardly and consistently with the public. In my judgment this is a legal standard
which, although not found in terms in the European Convention on Human Rights,
takes its place alongside such rights as fair trial, and no punishment without
law. That being so there is every reason
to articulate the limits of this requirement – to describe what may count as
good reason to depart from it – as we have come to articulate the limits of
other constitutional principles overtly found in the European Convention. Accordingly a public body’s promise or
practice as to future conduct may only be denied, and thus the standard I have
expressed may only be departed from, in circumstances where to do so is the
public body’s legal duty, or is otherwise, to use a now familiar vocabulary, a
proportionate response (of which the court is the judge, or the last judge)
having regard to a legitimate aim pursued by the public body in the public
interest. The principle that good
administration requires public authorities to be held to their promises would
be undermined if the law did not insist that any failure or refusal to comply
is objectively justified as a proportionate measure in the circumstances.”
CONSULTATION
24.
WF
refers to and adopts paragraphs 56 to 66 of the Claimant’s Skeleton Argument.
25.
As to
the application of the first of the Sedley principles attention is drawn to Nicols v. Gateshead MBC
(1987) 87 LGR 435 at 455:
“This is very relevant to the first point in
the Sedley formulation which Mr Carnwath relied on, namely “that consultation
must be at a time when proposals are still at a formative stage”. Mr Beloff says there has been no breach of
that because “formative stage” means at any stage before the final decision is
made. I reject that submission. If that was what was intended it would have
been simplicity itself to say that consultation must be at a time before the
final decision is made. Anyway,
commonsense and a little knowledge of human nature tells one that if all the
work has been done and there is a time scale to be followed there will,
subconsciously, be the greatest possible reluctance to go back to the beginning
and start again, throwing away all the work done and throwing out the time
scale. However much those concerned may
sincerely convince themselves otherwise, there is a strong danger that the
exercise of consultation will be a mere public relations or cosmetic exercise.”
26.
In R
v. Secretary of State for Social Services ex p. Association of Metropolitan
Authorities [1986] 1 All ER 164 Webster J said (at paragraph 167 g/h):
“…in any context the essence of consultation
is the communication of a genuine invitation to give advice and a genuine
consideration of that advice”.
ILLEGALITY
27.
In addition, it is an established principle of
public law as set out in Ashbridge Investments Limited v Minister of Housing
and Local Government [1965] 1 WLR 1320, that the decision maker must not
take into account irrelevant material or fail to take into account relevant
material.
28.
The
test in relation to the “very special circumstances” which would justify
any grant of planning permission in the Green Belt is of course set out in R
on the application of Chelmsford B. C. v First Secretary of State (2004) 2
P & CR 34 applies. It provided that a decision taker had to be able to
point to circumstances that, objectively viewed,
were very special circumstances. The meaning of the word "special" included that which exceeded or excelled
that which was common. The test in relation to green belt land qualified that
meaning to the extent that the circumstances had
to be "very" special.
The words were to be given their full force and effect
COMMUNITY INVOLVEMENT
29.
WF refers
to and adopts the Claimants’ Skeleton Argument at para 48.
30.
In
addition attention is drawn to PPS1 para 40 and 41 as follows:
“Community involvement
40.
Planning
shapes the places where people work and live.
The planning system operates in the public interest to ensure the
development and use of land results in better places for people to live, the
delivery of development where communities need it, as well as the protection
and enhancement of the natural and historic environment and the
countryside. The outcomes from planning
affect everyone, and everyone must therefore have the opportunity to play a
role in delivering effective and inclusive planning. Community involvement is vitally important
to planning and the achievement of sustainable development.
41.
One of the
principles of sustainable development is to involve the community in developing
the vision for its area. Communities
should be asked to offer ideas about what that vision should be, and how it can
be achieved. Where there are external
constraints that may impact on the vision and future development of the area
(for example, those that may arise from planning policies set at the regional
or national level) these should be made clear from the outset. Local communities should be given the
opportunity to participate fully in the process for drawing up specific plans
or policies and to be consulted on proposals for development. Local authorities,
through their community strategies and local development documents, and town
and parish councils, through parish plans, should play a key role in developing
full and active community involvement in their areas.”
31.
Even
the Defendant asserts the importance of this in these proceedings. Note in
particular that Mr Cleary draws attention to the statutory requirement in PCPA
2004 that:
“..requires planners to collaborate actively
with the wide range of stakeholders and agencies that help to shape local areas
and deliver local services”.
32.
Finally,
it is said by the Defendant in the prospectus which accompanied the Housing
Green Paper that:
“Eco-towns will be judged against the
following criteria:
-
-
-
Community involvement
-“
33.
The
combined effect of all of these statements from the Defendant is a promise that
WF will be fully engaged, in a positive and collaborative way, in the
formulation of the policy with regard to eco-towns and also in all matters
appertaining to the selection of Weston Otmoor as a candidate eco-town.
34.
Further,
and implicitly, that the Defendant will behave towards WF in a manner which is
straightforward, open and fair with regard to the resolution of these matters.
35.
These
are the promises which provide the basis of WF’s argument concerning legitimate
expectation.
THE ISSUES
36.
WF
agrees with and adopts the list of issues set out at paragraph 4(i) to 4(v) of
the Claimants’ Skeleton Argument. WF has
nothing to add to the discussion about SEA at sub-paragraph 4(vi).
ISSUE (I): THE PRINCIPLE OF ECO-TOWNS
37.
It is
said by the Defendant that:
“…the opportunity to bring together the 2
policy agendas of additional housing supply and climate change is the basis of
the eco-towns programme”
38.
WF
would wish to question whether the eco-towns programme was the only, or best,
way to achieve these desirable outcomes.
Indeed WF would wish to point out that building “freestanding”
settlements out in the open countryside is positively harmful to the second
objective in view of the carbon emissions which are unnecessarily likely to
arise from that process. In advancing
this argument WF would wish to point to a whole raft of supra-national and
national guidance which directs land use planning decisions in accordance with
these policy agendas.
39.
WF
would also wish to point out that it is too glib to say eco-towns are
additional to existing provision because of the impact of granting consent for
an eco-town (in market terms) on whether, or the rate at which, other land
comes forward for development in more sustainable locations.
40.
The
Court is not being asked to adjudicate on the merits of any of this but simply
to note that there is a substantial platform for discussion about whether eco-towns
are even a good idea and that WF is able and extremely keen to make a
significant contribution to that debate.
41.
However,
in view of the procedure adopted by the Defendant it has been excluded from any
participation in that debate. As Mr
Henman points out, the first time that he and therefore WF (the local
community) became aware of the concept of an eco-town was when he read about
the developers’ proposal to build such a thing at Weston-on-the-Green in a
newspaper circulating in the locality.
42.
At no
stage has the Defendant published any document which invites views to be
expressed on the issue of principle.
43.
In the Housing Green Paper published in July 2007,
there was no express attempt to consult on the principle or merits of the
eco-town concept.
Indeed, the content of the Green Paper makes it clear that the decision to implement
a system of eco-towns has already been taken.
44.
Further, the Green Paper confirmed that
the Government would afford any selected eco-town proposals special status
within the planning system. It is recorded that the Government will: “commit
resources where appropriate to enable eco-towns proposals to be dealt with
quickly through the planning system using mini RSS reviews and use of new town
powers where necessary to secure implementation”.
Beyond the foregoing, the Interested
Party agrees with the Claimants’ analysis of the Housing Green Paper and has
nothing to add.
45.
The Eco-Towns Prospectus, which was also published in
July 2007, did not solicit representations on the principle of the eco-towns
concept, or in relation to the “key criteria” put forward. It invited bids for
potential eco-towns, thereby demonstrating that the concept of implementing a system
of low carbon towns has been settled.
46.
This conclusion is reinforced by the content of the
August 2007 letter to Chief Executives of Local Authorities from Mr Henry
Cleary, which invited bids for eco-towns.
It is confirmed beyond doubt by the latest version of PPS12, which was issued
on 4 June 2008. PPS12 refers to the possibility of an area: “receiving eco-town
...status”.
This makes it clear that the principle of eco-towns has already been decided
upon and forms part of current Defendant/Government policy.
47.
In the “Eco-towns: Living a greener future” document
published on 3 April 2008 (the “Shortlist Document”), which was coupled with a
Parliamentary Statement by Baroness Andrews of the same date, the Defendant announced
it had short-listed 13 potential eco-town sites, including Weston Otmoor (the
“Decision Impugned”). On the evidence, it is clear this decision
was reached without any or any meaningful consultation with affected
stakeholders, including the Local Planning Authorities (“LPAs”).
48.
In particular, other than a letter from Parkridge in
November 2007,
there was no consultation at all with WF or the residents of the Weston Otmoor
area: those most affected by the Weston Otmoor proposal.
49.
As set out in the most recent Statement on behalf of
the Interested Party, Oxfordshire County Council hold the formal view that the Weston
Otmoor proposals: “have been developed outside the plan-led system that has
served this country well for many generations and without adequate involvement
or consultation with local authorities or local residents”.
Cherwell District Council also supports the instant application for Judicial
Review of the Decision Impugned.
50.
The Shortlist Document itself sets out the scope of
consultation responses sought.
The consultation period was to run until 30 June 2008. Only preliminary views
were sought on the selected sites. Views were not sought on the principle of
the eco-towns concept or the key criteria, including locational criteria for
eco-towns. Views were not sought about
the 42 rejected locations and/or alternative sites.
51.
The Shortlist Document does, however, make further
reference to the support the Defendant/Government would give to selected
proposals, including Weston Otmoor.
To date, it is clear this has included meetings with promoters of the sites and
the establishment of the “Eco-Town Challenge Panel of Experts”.
52.
The Interested Party had three meetings with Mr Cleary
regarding the Weston Otmoor proposal on 19 and 30 June 2008 and then on 28 July
2008 respectively. During these meetings, no agenda was provided. Those in
attendance were informed about housing issues but no meaningful consultation
about the principle of eco-towns or the proposal to locate one at Weston Otmoor
was entered into by the Defendant.
53.
As pointed out in the Second Statement of Mr Henman,
the promoter of the Weston Otmoor proposal, Parkridge, has carried out some
minimal consultation with local residents in village halls. It is averred that
the consultation carried out was, however, inadequate.
Furthermore, it did not involve the local LPAs and Parkridge are not the
decision-maker in this case. Any such consultation did not assist the Defendant
in the discharge of its legal and policy obligations to consult with affected
stakeholders in the Weston Otmoor area.
54.
The Assessment Summary pertaining to the Weston Otmoor
proposal was made available for the first time on the Defendant’s website in or
around June 2008.
WF was not informed that it had been published. This fact, coupled with the
lack of any other information about the Weston Otmoor proposal, meant that WF
was not in a position to respond adequately or at all to the Shortlist Document
before the expiry of the 30 June 2008 deadline.
55.
Furthermore, due to the lack of information and
disclosure, WF was not in a position to provide representations about the
alternative sites in the Weston Otmoor area, which on the Government’s own
assessment appear to be better suited to accommodating an eco-town.
56.
Contrary to the view expressed by Caroline Flint on
various occasions, the Weston Otmoor site is not brown field land. Although
Margaret Beckett has since apologised for this error and confirmed that 20-30
percent of the site is in the Green Belt,
the formally expressed view of the Defendant prior to this was that it was
located on brown field land. It follows that the selection of the Weston Otmoor
proposal may in all probability have been made on an erroneous basis. Namely,
that part of the site was brown field and that it did not contain Green Belt
land. These errors demonstrate the inadequacy of the consultation process and
would have been corrected if proper consultation had been undertaken by the
Defendant.
57.
In short, prior to the 3 April 2008 decision of the
Defendant to shortlist the Weston Otmoor proposal, there was a total failure to
consult with WF and no consultation or no meaningful consultation was carried
out with the LPAs or other affected stakeholders. As a matter of fact and law,
the decision to shortlist the Weston Otmoor proposal and the other selected
proposals was not taken at a formative stage in the eco-town policy. This is
shown by the support given to the selected bids by the Defendant and the promise
of future support. It follows that the total failure to consult WF vitiates the
selection process as a whole and at the very least the decision to include the Weston
Otmoor proposal in the eco-town shortlist should be quashed. The Defendant
cannot rely on the contention that the plan to have a system of eco-towns was
at a formative stage. It was clearly well beyond that in April 2008.
58.
There
is one exception to the failure to consult.
In June 2008 it appears the Defendant published material in the Stratford
Herald newspaper. WF is not aware of any equivalent advert in the Weston Otmoor
area. The advert invited the public to address this question:
“Are eco-towns a good idea”
59.
It
must be inferred from this that the Defendant thought it was necessary and
important to elicit the public’s views on this question or it would not have
spent public money in publishing the advertisement.
60.
That
newspaper does not circulate in any area with which WF is concerned and it
cannot reasonably be expected that WF would have seen it. Thus the Defendant’s consultation into the
principle of eco-towns (insofar as the advert constitutes such consultation)
was carried out in a way which was unfair and prejudicial to the interest of
WF.
61.
The
Defendant either has not carried out a consultation into the principle of
eco-towns or carried it out in such a way that WF could not be expected to know
about it. Either way, WF has been denied
a fair crack of the whip on this most important of issues.
62.
It is
unclear from reading the Detailed Grounds of Resistance whether the Defendant
is arguing:
(a)
it was
entitled to formulate a policy on eco-towns without consulting and it has done
so; or
(b)
it has
invited and is still inviting consultation responses on the principle of
eco-towns, that the policy has not yet been formulated and these proceedings
are therefore premature.
63.
If it
is (a), the argument fails. In ex
parte Coughlan the Court held:
“…whether or not consultation of interested
parties and the public is a legal requirement, if it is embarked upon it must
be carried out properly”.
64.
It is
an agreed fact that the Defendant has purported to carry out a consultation.
Whether or not there is a legal obligation upon the Defendant to carry out this
consultation therefore becomes, for these purposes, irrelevant. To carry it out properly it must comply with
the Sedley principles. These require
that interested persons are given an opportunity to make representations as to
the principle (as opposed simply to the manner of implementation) of the policy.
65.
If it
is (b), the argument also fails. It is
clear from reading the papers that the Defendant is a very long way passed the
point where it has settled on a policy of having eco-towns. Contrast the immense amount of work, the
substantial sums of public money, and the range of published material set out
and explained by Mr Cleary with the understanding of human nature and
pragmatic realism of O’Connor LJ in Nichols (quoted above).
66.
The
extent of the Defendant’s settled intention to build eco-towns regardless of
what anyone says emerges clearly (albeit, perhaps, inadvertently) in Mr
Cleary’s third witness statement.
67.
It is
ludicrous to suggest, in the light of these matters, that the Defendant has an
open mind or even a pre-disposition. It
has a firmly settled intention.
68.
As if
to bring an end to any further debate on this matter Mr Cleary makes the
position clear in his witness statement:
“Government…is committed to the delivery of
eco-towns”
ISSUE
(II): LOCATIONAL CRITERIA
69.
It is
obviously central to any fair process of consultation that all relevant persons
know in advance what are the criteria against which candidate eco-towns will be
judged and that those criteria are applied fairly and consistently to all of
the candidate sites.
70.
This
is not what has happened in this case.
71.
The
selection criteria is said to be based on environment and transport.
72.
The
Green Paper then suggests:
“Final decisions will depend on the
strength, costs and sustainability of the bids received”.
73.
It is
then said by the Defendant that large brownfield sites are an important
(although to be fair not exclusive) criteria for assessment.
74.
It is
then said “early delivery” is an
important matter in the process of consideration which makes sense since the whole justification of
the policy is to achieve a rapid increase in housing land supply to meet a
chronic shortfall which exists now.
75.
It is
then said they must be “freestanding”
which apparently means separate and distinct from existing towns but well
linked to them”.
76.
It
then appears that the process for selection:
“…focused on transport and environment
issues as well as the overall requirement that proposals should be sustainable,
affordable and realistic in terms of policy and infrastructure investment
support”
This introduction of policy support is very important. It must include national planning policy and
that does include PPG2: Green Belts.
Thus, whether the proposal would involve inappropriate development in
the Green Belt was, according to Mr Cleary, an important part of the internal
process of selecting eco-town locations.
77.
A
specific consideration under environmental sustainability must have been
(although nowhere is it expressly set out) that a candidate site must not have
a significant adverse effect on internationally designated nature conservation
sites or Sites of Special Scientific Interest.
78.
It
would have been a very easy matter indeed for the Defendant to publish in a
single and accessible form the criteria which it intended to apply to the
selection of eco-town locations. Instead
it has produced this jumbled mess of different criteria in different documents
at different times. It does not
constitute a proper consultation for ordinary members of the public and it is,
in truth, a paper chase traceable only by a person of energy and persistence.
79.
Further,
the Pennbury site in Leicestershire is not “freestanding”
and therefore fails to meet the criteria but was nevertheless selected for
further consideration. This implies
either that this jumble was not the real criteria or that there was some
further criteria of which no one else was aware.
80.
Further
or alternatively, if this jumble is said to be the criteria then it is
irrational, preposterous and unfair that Weston Otmoor is still seriously being
considered since it is so obviously in conflict with them.
81.
Another
way to put this is that contrary to WF’s legitimate expectation these criteria
have not been applied in a rational, fair and even-handed manner:
(i)
Public Authority Support: Both of the Statutory Planning Authorities vehemently oppose the
selection of the Weston Otmoor site.
(ii)
Brownfield: The
site is entirely Greenfield.
On 4th November 2008 Margaret Beckett apologised for her predecessor’s error in thinking that
Weston Otmoor was a brownfield site. It
follows that at all material times whilst conducting the showstopper review the
Defendant was acting under the mistaken belief that the Weston Otmoor site was
brownfield.
(iii)
Conformity with Green Belt Policy: 174 hectares of the Weston Otmoor site lies
within the Statutory Green Belt. The
developer currently proposes inappropriate development in the Green Belt as
part of this proposal and the extent of the Green Belt incursion is not fixed
and is not known.
(iv)
The SSSi Criterion: “Part of the land identified
within the Eco-town boundary is SSSi and under a Higher Level Stewardship
Scheme. The SSSi is noted for its
extremely rare grassland (MG4) and is also an historically important ridge and
furrow landscape feature which is likely to be affected by increased visitor
use”.
As to the likelihood of significant adverse effects
the same document states:
“Water Quality Issues:
Potential for eutrophication on SSSi
which if it happened would lead to habitat degradation and loss of a rare and
valuable grassland site”.
(v)
Early Delivery: The Defendant’s document “Eco Town Proposals: Review Assessment
Summary (March 2008)” reads:
“Site falls in SWOX water resources zone
where significant new resource likely to be required to meet cumulative growth,
unlikely to be deliverable until 2020s”.
(vi)
Good Transport Links:
“There are significant concerns about this
proposal, particularly given the lack of realism in the transport strategy that
Weston provided. I see from the original
score that it was moved from a C to a C/D for environmental reasons. Given that it is also now a D in transport
terms, I would suggest that it should be moved from a C/D to a D overall. The meeting next week should confirm whether
this downgrading is appropriate/necessary”.
“There should be no surprises here for you
there are 3 outright showstoppers-Boston, Scunthorpe and Weston Otmoor”.
“I am broadly happy with the
accuracy of the draft summary notes for each of the bids, with the exception of
Weston Otmoor. My clear recollection of
the meeting was that the Highways Agency expressed severe reservations about
the capacity of the A34 and the M40/A34 junction to accommodate the additional
traffic likely to be generated by a new ecotown at this location. This concern was in my opinion in the
showstopper category”.
82.
The
confusion as to what criteria were employed and how they were applied to
selecting some sites and rejecting others is deep and real. WF should not be in this position. They are entitled to expect to be provided with
a clear indication of what the criteria are and how they have been
applied. Instead, WF has been left with
the very real impression that the process has been far from thorough and is, in
fact, capricious and subjective.
83.
This
is confirmed by the publication by the Defendant of the Sustainability
Appraisal. This document appears to be
intended to provide a standard by which each site may be judged and, thereby, a
benchmark for comparing different sites.
84.
As Mr
Henman explains a site known as Shipton on Cherwell which was
rejected in the initial sift of 57 sites has now re-emerged with a superior score
to Weston Otmoor. It is unclear to WF
why a site with a B rating was rejected in favour of Weston Otmoor which has a
C rating. If the Defendant had complied
with its legal obligations concerning consultation and legitimate expectation
then WF would not be left in this state of bewilderment.
85.
The
position then gets worse. It now appears
that a wholly new site has come forward which the Defendant failed to consider
in the initial round of 57 sites but which also scores a B rating and which is
therefore manifestly superior to Weston Otmoor.
86.
All of
these matters may be resolved by granting the relief sought in these
proceedings and inviting the Defendant to begin again with known criteria and a
known list of sites.
87.
In
summary WF contends:
(i)
the
various statements as to the criteria to be employed in selecting the eco-town
site are confused and confusingly presented such that what the Defendant has
attempted does not amount to a proper consultation in Law;
(ii)
the
criteria have been applied inconsistently which implies there are other
criteria that have been used in the site selection process which has been
wrongfully withheld from WF; and
(iii)
contrary
to WF’s legitimate expectation the criteria have not been applied to Weston
Otmoor in a way which could be described as straightforward, open and fair. The
Weston Otmoor site is an abject failure when assessed against these criteria
and has been repeatedly judged as such by the Defendant’s own internal
consultees. Upon no fair or reasonable application of the criteria could the
Weston Otmoor site possibly have survived the review.
ISSUE (III) THE 42 LOCATIONS
88.
WF
adopts paragraphs 94 to 96 inclusive of the Claimant’s Skeleton Argument which
are plainly correct.
89.
The
Defendant’s stated intention is that it wishes to see “up to 10” eco-towns built.
This implies 10 is a ceiling and that the final number may be lower but
will not be higher.
90.
It is
assumed the Government wishes to see the best 10 locations come forward i.e.
those which perform best against the published criteria. Thus the exercise is
fundamentally comparative. In order for
there to be a meaningful consultation WF must be given an opportunity to
contend that other locations better fit the criteria than Weston Otmoor with a
view to causing Weston Otmoor to drop out of the top 10.
91.
It is
not reasonable for WF to be told they will have to accept that the Defendant
has fairly and conscientiously assessed all 57 sites and arrived at the best 13
since:
(i)
from
the little we know, we know that the Defendant’s sift is full of errors; they
thought Alconbury was in Norfork and Weston Otmoor was brownfield; and
(ii)
the
Defendant is in internal conflict as to whether, for example, Weston Otmoor is
the subject of a show stoppers.
92.
It is
difficult to make any further meaningful submissions on this matter since the
Defendant has decided to withhold all the material necessary to make a fair
assessment of this matter; save to say this.
In the Detailed Grounds of Resistance the Defendant seeks to rely upon
an unreported decision.
93.
Insofar
as that authority is inconsistent with the Sedley principles, the latter
prevails. The Defendant offers the ratio
in this case as a fixed principle and then, in the next paragraph, contradicts
itself, (para 56):
“What is required is dependant on the facts
and the nature of the consultation in issue”
94.
WF
agrees with this. The facts set out
above clearly require WF to be given an opportunity to compare the Weston
Otmoor site to the 56 other candidate locations.
ISSUE (IV): INFORMATION
95.
WF
adopts the Claimants’ case at paragraphs 100 to 111 of their Skeleton Argument.
96.
It is
clear from the letters quoted above and Mr Henman’s Second Statement that the
Defendant is in possession of substantial quantities of material relevant to
the Weston Otmoor site which is has wrongfully chosen to withhold.
97.
It is
in the nature of this discussion that WF is unable to particularize this
information but some conclusions may be drawn from the information which is
available; one example will suffice:
(1)
the
e-mail of 22nd February states:
“My clear recollection of the meeting was
that the Highways Agency expressed severe reservations about the capacity of
the A34 and the M40/A34 junction to accommodate the additional traffic likely
to be generated by a new eco-town at this location”.
98.
WF is
not told what those severe reservations were, who expressed them, upon what
evidential base or whether they are reasonably capable of being overcome either
in time to meet the Government’s aspirations or at all.
99.
A major failure in relation to disclosure
is that the February e-mail and the Assessment Summary were not disclosed to
the Interested Party prior the expiry of the 30 June 2008 deadline. This fact,
coupled with the failure to disclose any relevant information to WF before the
end of the Shortlist Document consultation period means that a meaningful
response from WF to the short listing of the Weston Otmoor proposal was simply
not possible.
ISSUE (V): TIME
100.
WF
agrees with the Claimants and repeats the foregoing paragraph. It has
nothing further to add.
THE SHOWSTOPPER EPISODE
101.
This
matter is looked at against the background of repeated assurances from the
Defendant that the local community would be fully and effectively engaged in
the whole process of formulating policies and plans which affect their area.
102.
Mr
Henman has explained that WF embarked on a search for the criteria which
informed decision making as to the selection of eco-towns. This included meetings with the Defendant,
Freedom of Information Act requests, letters to the Defendant’s preferred
developer, Parkridge and enquiries of the district and regional planning
authorities.
103.
The
Defendant was aware that, during this time when WF was making these enquiries,
one of the centrally important matters which determined site selection was the
presence of an SSSi and the likelihood of an adverse effect. It could and should have notified WF that
this was an important matter in the site selection process but chose not to do
so.
104.
The
Defendant was then advised that the Weston Otmoor site was subject to two SSSi
designations. At this point a strong
duty arose out of consideration of fairness for the Defendant to advise WF of
this matter. This is because SSSi
designation was no longer just an abstract criterion but an issue which applied
directly to the Weston Otmoor site. But
the Defendant still remained silent – at least as far as WF was concerned.
105.
Mr
Cleary takes up the narrative in this way:
“To help resolve this borderline C/D
assessment further information was sought from the promoter” [emphasis added]
106.
Fairness
and community involvement are at the root of the legitimate expectation
complaint. Why did the Defendant only
speak to the promoter? Why did the
Defendant not speak to WF or the local Wildlife Trust with a view to resolving
the C/D dichotomy in favour of D?
107.
Mr
Cleary explains that a meeting took place on 27th March in which the
C/D dichotomy was resolved in favour of C because the developer altered the
conceptual master plan so as to take the footprint of the development out of
the SSSi and erect barriers to dog walkers.
108.
Leaving
aside the obvious point that the conceptual master plan is a thing writ in
water, this does not address all of the concern over the impact on the SSSi
which, as explained, was partly based around the potential for eutrophication.
109.
This
process of engaging the developer in secret meetings to overcome fundamental
points of objection on the basis of an informal and unrecorded conversation:
(i)
is in
conflict with WF’s legitimate expectation explained above;
(ii)
is a
further failure on the part of the Defendant to carry out a fair and lawful
consultation, and
(iii)
is
irrational since the solution offered fails to address the problem which had
been identified.
Anthony
Crean Q.C.
Tim
Sheppard
