Legal Compliance, Infrastructure and Additional Documents 17th June 2015
1.Legal Compliance/Soundness
1.1.The Canterbury Draft Local Plan (CDLP) cannot be found sound because it is unlawful as clearly set out (again)in Richard Harwood QC OBE’s latest opinion dated June 15th 2015. The unlawfulness of CCC’s approach to the SEA and Habitat regimes cannot be remedied during the examination process. Therefore, the CDLP needs to be suspended so that the proper process under both regimes can be undertaken. Suspension of a plan is supported under paragraphs 11 and 12 of the Examining Local Plans Procedural Practice Guidance December 2013.
1.2.In addition to the above unlawfulness, a third legal flaw concerns the unfairness of the public consultation undertaken by CCC leading up to and after the submission of the CDLP to PINS. The letter dated 19 February by Jeremy Baker goes through the unfairness of the process in considerable detail. This you have a copy of. The leading case on consultation R (on the application of Moseley (in substitution ofStirling Deceased)) (AP) (Appellant) v London Borough of Haringey [2014] UKSC 56 would strongly suggest that the consultation process has been unlawful. This provides an additional reason for the CDLP to be suspended so that the public can be consulted upon all the new/missing information including the new SEA and Habitats information required.
1.3. Furthermore, the CDLP is unlikely to be deliverable considering the recent Supreme Court judgment R (on the application of ClientEarth) (Appellant) v Secretary of State for the Environment, Food and Rural Affairs (Respondent)[2015] UKSC 28. The serious air pollution breaches identified in Canterbury will need to be resolved by a CDLP that does not seek to increase car use through new roads and settlements in places that would encourage and often necessitate the need to travel by car. The Government cannot reasonably justify to the courts,plans to achieve air pollution compliance for large urban areas but not for cities such as Canterbury. Air pollution kills wherever it is found.
2. Infrastructure-Issues of climatechange. Local planning authorities are bound by the legal duty in Section 19 of the 2004 Planning and Compulsory Purchase Act, as amended by the 2008 Planning Act, to ensure that, taken as a whole, plan policy contributes to the mitigation of and adaptation to climate change. This powerful outcome-focused duty on local planning clearly signals the priority to be given to climate change in plan-making. In discharging this duty, local authorities should consider Section 10, paragraph 94 of the National Planning Policy Framework and ensure that policies and decisions are in line with the objectives and provisions of the Climate Change Act 2008 and support the National Adaptation Programme. The main proposed infrastructure in the CDLP, the backbone on which the whole plan hangs, cannot be considered to discharge this duty.
Please Note: The individuals and organisations responsible for paying for Richard Harwood QC OBE’s legal opinions have been advised that they are barred from pursuing judicial review at this stage by s.113 of the Planning and Compulsory Purchase Act 2004.
3. Additional Documents (attached)
i) R (on the application of Moseley (in substitution ofStirling Deceased)) (AP) (Appellant) v London Borough of Haringey [2014] UKSC 56
ii) R (on the application of ClientEarth) (Appellant) v Secretary of State for the Environment, Food and Rural Affairs (Respondent)[2015] UKSC 28
iii) Planning for Climate Change-Guidance for Local Authorities-Planning & Climate Change Coalition April 2012
iv) The Dutch Urgenda Case. This is yet unavailable but will be handed down on June 24th 2015. KECN will seek to rely on this case during the examination. The case concerns a claim against the Dutch Government on human rights and negligence grounds for failing to implement adequate measures to avoid dangerous climate change.
Emily Shirley
The Kent Environment and Community Network
c/oNetherbury
Meadow Close
Bridge, Kent
CT4 5AT