Regional Spatial Strategy: Publication of East of England Plan Legal Challenge

Regional Spatial Strategy: Publication of East of England Plan Legal Challenge

HERTFORDSHIRE COUNTY COUNCIL

CABINET

MONDAY 23 JUNE 2008 AT 12 NOON

REGIONAL SPATIAL STRATEGY: PUBLICATION OF EAST OF ENGLAND PLAN – LEGAL CHALLENGE

Joint Report of the Director of Environment and the CountySecretary

Author: Paul DonovanTel:01992 556289

Executive Member:Derrick Ashley (Planning, Partnerships and Waste)

1.Purpose of report

1.1To inform Cabinet of the publication of the Regional Spatial Strategy for the East of England [the East of England Plan (RSS)]and to obtain a Cabinet decision on whether instigate legal proceedings.

2.Summary

2.1Following over six years of preparation the Government has published (12 May 2008) the RSS. The County Council has opposed the overall scale of growth proposed for the County throughout the process and particularly that directed to a range of growth locations – Stevenage, Harlow (including to the north in East Hertfordshire), Hemel Hempstead and Hatfield/Welwyn Garden City (both of which emerged late in the RSS preparation process and both potentially having implications for the City and District of St Albans).

2.2The Leaders of ten of Hertfordshire’s eleven authorities have previously written to the Government at the Proposed Changes stage of RSS to highlight areas of concern about its contentand preparation and setting out matters which needed to be addressed to avoid the risk of legal challenge (see letter at Appendix 2). Published RSS contains arange of small wording changes and additional work has been undertaken relating to Strategic Environmental Assessment and Appropriate Assessment under the European Habitats Directive. However, these changes and additional work have not resulted in any substantive changes to the RSS in terms of the main implications for Hertfordshire as set out in paragraph 4.2 of this report.

2.3Following publication of RSS the only recourse to those parties aggrieved by its contents and process of preparation is to instigate legal proceedings, in the first instance to the High Court (by 23rd June 2008). The CountySecretary advises that the County Council has grounds to challenge the validity of the RSS in legal proceedings.

3.Conclusion

Cabinet needs to consider whether to authorise the institution of legal proceedings against the Secretary of State.

4.Background

4.1In 2002 the East of England Local Government Conference (EELGC) commenced the process of preparation of revised Regional Planning Guidance for the newly formed East of England Region for the period 2001-2021. Legislative change in 2004 subsequently created Regional Assemblies which, amongst other matters, were charged with preparing Regional Spatial Strategies to replace regional planning guidance. These would now form part of the development plan, along with LDFs prepared by local planning authorities. The newly created East of England Regional Assembly (EERA) chose totreat the draft RPG that EELGC had been preparing as if it were an RSS and continued the statutory preparation process on this basis.

4.2On 12 May 2008 the Government published theRSS. The main implications for Hertfordshire can be summarised as follows:

  • a minimum of 83,200 homes (excluding any homes within Hertfordshire associated with either Harlow or Luton expansion into the County) between 2001-2021 and job growth of 68,000 jobs.
  • Hatfield/Welwyn Garden City identified as a Key Centre for Development and Change. Minimum 10,000 homes 2001-2021 for the district as a whole, with possibility of some growth in St Albans District if Hatfield extension to the west is favoured through local planning processes.
  • Hemel Hempstead identified as a Key Centre for Development and Change. Minimum 12,000 homes for Dacorum Borough as a whole but concentrated at Hemel Hempstead, with probable need to expand to the east into St Albans District.
  • Stevenage identified as a Key Centre for Development and Change. Minimum 16,000 homes 2001-2021 with major greenfield growth to the west (minimum of 5,000) and north.
  • Watford identified as a Key Centre for Development and Change. Minimum 5,200 homes 2001-2021.
  • Harlow identified as a Key Centre for Development and Change. Minimum 16,000 homes 2001-2021, including to the north of Harlow in East Hertfordshire. Eventual development to the north of Harlow for at least 10,000 dwellings ‘and possibly significantly more – of a large enough scale to be a model of sustainable development’.
  • Harlow, Hatfield/Welwyn Garden City, Hemel Hempstead and Stevenage require Green Belt reviews to accommodate potential growth requirements to 2031 and beyond.

4.3The Leaders of ten of Hertfordshire’s eleven authorities have previously written to the Government at the Proposed Changes stage of RSS preparation to highlight areas of concern about the content and preparation of the RSS and setting out matters which needed to be addressed to avoid the risk of legal challenge (see letter at Appendix 1). A number of small changes have been made to the wording of the RSS and additional work has been undertaken relating to Strategic Environmental Assessment and Appropriate Assessment under the European Habitats Directive. However, these changes and additional work have not resulted in any substantive changes to the RSS in terms of the main implications for Hertfordshire as set out in paragraph 4.2.

5.Legal Challenge

5.1Following publication of RSS the only recourse to those parties aggrieved by its contents and process of preparation is to instigate legal proceedings, in the first instance to the High Court (by 23rd June 2008). Cabinet members have received, under confidential cover, copies of grounds of challenge drafted by Counsel. The CountySecretary advises that the County Council has power under section 222 of the Local Government Act 1972 to institute legal proceedings if they consider it expedient for the promotion or protection of the interests of the residents of the county. Given the impact of the Plan on the county as outlined earlier in this report, Cabinet may take the view that a legal challenge to the validity of the RSS is expedient for the purposes of Section 222 of the Local Government Act. Such a challenge would be brought by way of an application to the High Court under section 113 of the Planning and compensation Act 2004

6.Financial Implications

6.1There are no direct financial implications of the publication of the RSS.

6.2The cost of challenge to the High Court is estimated to be in the region of £50,000. Any appeal will incur further costs. The County Council has identified funds in the 08/09 budget for costs associated with the RSS and any legal costs will be charged to this budget.

6.3The scale of growth proposed within Hertfordshire will continue to have significant direct implications on a wide range of County Council functions and services, placing extra demands across the County and particularly at growth points. The financial implications are not known at this stage as much will be dependent upon the location of growth which is yet to be determined.

Background Papers

East of England Plan – Draft Revision to the Regional Spatial Strategy (RSS) for the East of England. East of England Regional Assembly December 2004.

East of England Plan Examination in Public - Report of the Panel. June 2006.

East of England Plan – The Secretary of State’s Proposed Changes to the Draft Revision to the Regional Spatial Strategy for the East of England and Statement of Reasons. Government Office for the East of England. December 2006.

East of England Plan The Secretary of State’s Proposed Changes and Further Proposed Changes to the Draft Revision to the Regional Spatial Strategy for the East of England. Government Office for the East of England. October 2007.

East of England Plan – The Revision to the Regional Spatial Strategy for the East of England. Government Office for the East of England. May 2008.

Appendix 1

Joint Hertfordshire Local Authorities Leaders’ Letter to the Government in Response to the RSS Proposed Changes Consultation

Meg Munn MP

Parliamentary Under Secretary of State

Department for Communities and Local Government

Eland House

Bressenden Place

London

SW1E 5DU

9th March 2007

Dear Ms Munn,

East of England Plan – the Secretary of State’s Proposed Changes to the Draft Revision to the Regional Spatial Strategy for the East of England

The Hertfordshire local authorities (the ‘authorities’ or ‘relevant authorities’ where the issue considered relates to some but not all authorities) that are signatories to this letter are of the view that there is a pressing requirement to have a robust RSS in place as soon as possible to provide the context for the preparation of Local Development Documents and other plans and strategies. However, they are also of the view that there are aspects of the Proposed Changes that raise fundamental procedural and legal concerns that potentially have implications on the ability of the Secretary of State (‘SoS’) to approve a robust Regional Spatial Strategy (‘RSS’) at this stage.

The purpose of this letter is therefore twofold.

Firstly, to identify those areas of greatest concern to the authorities – these being:

i.the additional new strategic growth proposals at the New Towns of Hemel Hempstead, Hatfield and Welwyn Garden City;

ii.the northwards expansion of Harlow;

iii.infrastructure provision to support growth; and

iv.Sustainability Appraisal/Strategic Environmental Assessment and Habitats Directive Assessment.

Secondly, to set out what needs to happen prior to approval of the RSS to minimise the risk of legal challenge and the resultant delay this would entail.

Context

The context for the RSS generally and the SoS’s Proposed Changes specifically is the Government’s policy push for very substantial additional housing in the south east. In effect, Government policy is to: (a) ring-fence projected household growth in the wider south east rather than consider options to seek to direct that demand to other parts of the country where there is scope to accommodate it in a more sustainable way; and (b) identify certain parts of the wider south east where that growth should be concentrated – growth areas.

The authorities note that in formulating that policy and taking it forward, there has been no strategic environmental assessment, including consideration of alternatives. The lack of such an assessment (even if lawful) provides a part of the context for the authorities’ concerns.

Whilst not rehearsing the evolution of the RSS some key points are worth highlighting:

i.the original ‘banked’ version of the RSS did not meet the SoS’s requirements for additional housing, in particular in the London-Stansted-Cambridge (LSC) Corridor [letter from Lord Rooker to the EERA (the ‘RPB’) dated 21st January 2004];

ii.the RPB promised to attempt to meet the increased requirement in a final draft of the RSS [letter of 10th February 2004. The correspondence shows the link being drawn between increased numbers and infrastructure provision (as one would expect)];

iii.in the event, the RPB found it impossible to meet Lord Rooker’s requirements [letter of 25th November 2004 – ‘.. the Assembly has not been convinced by the additional studies that there is a proven need for additional housing or that it can be provided in a sustainable manner’]. There were promises, however, to keep the RSS under review in the light of up to date housing demand figures and to look for a new settlement post – 2021;

iv.the submitted draft RSS reflected this position;

v.that draft RSS contained no strategy or analysis for growth of the New Towns in a general sense;

vi.further household projections led the Examination in Public (EiP)Panel to identify increased housing need in the East of England to 2021;

vii.the EiP Panel sought to identify appropriate locations for such growth;

viii.the EiP recommended an upward revision of the housing target for the Region from 478,000 dwellings to 505,500.

ix.the SoS has subsequently increased this still further to 508,000 dwellings and proposes that this be treated as a minima.

Proposed Strategic Growth at Hatfield/Welwyn Garden City and Hemel Hempstead

The London Arc (in so far as it relates to Hertfordshire) “broadly coincides with the Green Belt” (EiP Panel Report, para 5.120). It provides the setting for inter alia 20th Century New Towns “set in Green Belt countryside”. It is not a growth area. There is nothing in the Sustainable Communities Plan or strategic guidance which envisages significant additional greenfield, Green Belt growth in this arc in Hertfordshire.

In respect of Hatfield/Welwyn Garden City (‘H/WGC’) and Hemel Hempstead(‘HH’) no such growth had been historically envisaged by the RPB in preparing draft RSS due to concerns relating to Green Belt and environmental and infrastructure constraints. As a consequence the EiP Panel’s recommendation to direct strategic growth towards H/WGC and HH was not foreshadowed by any proposal in the draft RSS of November 2004 (or any previous version) nor in any detailed studies as to explore matters such as: (1) the ability of those areas to accommodate sustainably that extra development; (2) the deliverability of the additional housing given factors such as transport infrastructure, wastewater treatment capacity, flood constraintsand minerals resources; or (3) an analysis as to the respective merits of that approach compared to other options elsewhere.

Whilst developers promoted individual sites at the EiP, no party promoted a strategy based on the general expansion of the New Towns, including H/WGC and HH. It is, with respect, impossible to adopt a policy of general expansion of such towns without addressing town specific matters. What may be possible or even desirable in one New Town may be impossible and/or undesirable in another. It is wrong in principle to treat New Towns as some homogeneous group [EiP Panel Report, para 5.125-6].

The merits of a general emphasis on New Towns was a matter raised by the EiP of its own motion at the EiP and appeared to be based on the Government’s response to the Parliamentary Committee report into “New Towns: Their Problems and Future” and the statement there that:

“Because New Towns were built within flexible frameworks the opportunity exists for them to benefit from the sustainable communities agenda. In particular the New Towns in the RPG9 area are all capable of further growth and development in an holistic way within current policy guidelines.”

In its context this was clearly not an invitation to widescale Green Belt releases around the New Towns. Further, any such widespread Green Belt releases to accommodate such growth would not be within current policy guidelines to which the EiP was required to work.

The logic of the EiP Panel (EiP Panel Report, paragraphs 5.125 and 5.126) in recommending further growth in H/WGC and HH was:

(1) the extent of the regional need for housing;

(2) the historic performance of these towns in matching jobs with homes;

(3) well placed on strategic transport links;

(4) accessible to London;

(5) the benefits of increasing the towns’ sizes; and

(6) tackling regeneration issues.

…..and that these “present exceptional circumstances warranting Green Belt reviews to enable expansion of these towns to take place……..”.

It is to be noted that nowhere in that analysis was any consideration given to the historic and continuing regional and strategic importance of the London Green Belt; the fact that the same arguments could be prayed in aid of all or at least many Green Belt towns around London; and there was no attempt to grapple with the question whether the need (said to underpin the asserted exceptional circumstances) could and should be met elsewhere.

In respect of:

(1)sub-para (1) above there was no consideration of non-Green Belt alternatives elsewhere to meet the need which the EiP had earlier identified or the strategic and regional merits of growth here;

(2) sub-para (2) above, there was no town specific analysis (and no evidence) as to whether this would continue in the future;

(3)sub-para (3) above, there was no analysis (and no evidence) as to the ability of those strategic transport links to cope with additional growth;

(4)sub-para (4) above no recognition that this factor was present in all Green Belt towns around London;

(5)sub-para (5) above, no assessment as to why H/WGC/HH needed to or would benefit from an increase in size; and

(6)sub-para (6) above, no town specific consideration as to whether growth was needed to bring forward and sustain regeneration.

Given that each of those matters relied upon is the subject of no substantive analysis or appraisal, the relevant authorities consider the approach to be unlawful. It appears to the relevant authorities that, on a fair reading of the EiP Panel Report, having: (1) found that the RPB was broadly correct in its analysis of the LSC Corridor capacity; (2) identified total growth requirements of 505,500 for the Region; and (3) recognised that the studies available to it left a shortfall, the EiP simply picked an “easy target” for soaking up some of the shortfall without any sustainable evidential basis for so doing.

Within the context of sustainability appraisal and strategic environmental assessment requirements and the high test for Green Belt releases in national policy (bolstered by case law) that is not an acceptable approach.

Major policy decisions: (1) to change the strategic location of development (as this was); and (2) to require the redrawing of Green Belt boundaries for the development of potentially thousands of additional houses are required – whether under EU or domestic law or under national policy {which the relevant authorities are entitled to assume the SoS will follow as a matter of general administrative law: see R(Nadarajah and Abdi) v. SSHD [2005] EWCA Civ 1363)} – to be appraised and justified through a rigorous process of consideration of impacts and alternatives. Those requirements are simply not followed at all in respect of the introduction of strategic growth at H/WGC and HH.

Top View