Object

Representation ID: 10124

Received: 29/07/2022

Respondent: Bedfordia Developments Ltd and Bedfordshire Charitable Trust Ltd

Agent: DLP Planning Limited

Legally compliant? No

Sound? No

Duty to co-operate? No

a)
2.11
2.12
Sustainability Appraisal
In accordance with Section 19(5) of the 2004 Planning and Compulsory Purchase Act, policies set out in local plans must be subject to Sustainability Appraisal (SA). This incorporates the requirements of the Environmental Assessment of Plans and Programmes Regulations 2004 (“SEA Regulations”), SA is a systematic process that should be undertaken at each stage of the Plan’s preparation, assessing the effects of the Local Plan’s proposals on sustainable development when judge against reasonable alternatives.
Regulation 12(2)(b) of the SEA Regulations requires the SA to “identify, describe and evaluate the likely significant effects on the environment of— (a) implementing the plan or programme; and (b)reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme.” Schedule 2, paragraph 8 requires an outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken.”
2.13 These provisions have been subject to considerable litigation before the Planning Court and Court of Appeal. The courts have emphasised that such assessment must be conducted in a manner which is robust and gives proper effect to the legislation. Reasonable alternatives must be assessed in a “comparable” manner and the reasons for rejection of such alternatives must be clear (Heard v Broadland [2012] EWHC 344 (Admin), [54], [57] and [70] and Friends of the Earth v Welsh Ministers [2015] EWHC 776 (Admin), [88](viii) and (ix)). An SA will be in breach of Regulation 12(2) where it contains no consideration of a reasonable alternative (Ashdown Forest Economic Development Llp v Wealden District Council [2015] EWCA Civ 681, [42]). Whilst an evaluative judgment is required, the courts will quash a plan/policy based upon an SA which does not address a matter that it must expressly deal with and thus contains a “patent defect” which has not been addressed (R(Plan B) v Secretary of State for Transport [2020] EWCA Civ 214, [129] and [137] and Flaxby Park v Harrogate BC, [2020] EWHC 3204 (Admin), [129]
2.14 Under the PPG, It is very well-established that an SEA exercise must be “systematic” and “iterative” (PPG 11-001, 11-018); it is “integral” to the preparation and development of the plan (PPG 11-006); and it must be based on an assessment of alternatives, with clear reasons provided for the choices made (PPG 11-018).
2.15 We shall return to SEA further under Chapter 4, where we identify concerns in respect of the assessment of appropriate mitigation.
2.16 There are no shortcuts when conducting SEA/SA. The Local Plan must ensure that the results of the SA process clearly justify its policy choices. Where proposed site allocations are required, the approach taken to new growth must assess ‘all reasonable alternatives’. In meeting the development needs of the area, it should be clear from the results of the assessment why some policy options have been progressed and others have been rejected. The Council’s decision making and scoring should be robust, justified and transparent and should be undertaken through a comparative and equal assessment of each reasonable alternative.
2.17 It is not permissible for an SA process simply to flag up the negative aspects of development whilst not fully considering the positive aspects which can be brought about through new opportunities for housing development and how these can influence landscape issues, social concerns and the economy.
2.18 It is therefore essential that an SEA/SA properly explains and evidences that the statutory requirements have been met. This a substantial amount of work and iteration in the testing of reasonable alternatives. It is therefore essential that the legislation is followed very carefully, and that the SA Report is examined fully to ensure compliance.
2.19 That has not occurred in this case. The SA/SEA is seriously defective in its approach to reasonable alternatives, to an extent that is unlawful.
2.20 We refer back to Chapter 2 of the Sustainability Appraisal Findings (“SA Findings Report”) (copy at Appendix 2), which were appended to the Regulation 18 representations submitted by DLP on behalf of our clients.
2.21 Alongside a detailed assessment of the legislative, policy and guidance requirements relating to Sustainability Appraisals, the SA Findings Report considered specific failings of the Regulation 18 draft version of the SA.
2.22 That can be incorporated by reference to these submissions as there has been no effective change to the SA work. Having reviewed the latest iteration of the SA in detail, it is even more evident that the process undertaken has been rushed. The SA work is not effective or justified. It has very significant gaps. There are clear defects with regard to the SEA Regulations.
2.23 We again echo our concerns, as expressed in the SA Findings Report, with regard to the Council’s decision to reject Option 3c (which includes village-related growth). This has simply not been addressed in the April 2022 SA, where the Council’s only potential claim to have explored a ‘hybrid’ option incorporating village-related growth lacks any of the iterative testing required in terms of site options, levels of growth or reasons to include or exclude other components what would in principle comprise an appropriate strategy. We consider that the approach taken by the Council remains unjustified.
2.24 The benefits of early site delivery and the delivery of community benefits should be reflected in the scoring of the SA and it should be recognised that delivery of community infrastructure is key in achieving the objectives of the SA. For sites which can deliver locally identified infrastructure requirements, such as green infrastructure (as per our clients’ land at Sharnbrook), health provision and school place provision (as per at Oakley), the SA should consider the wider benefits of the scheme to the existing population and score accordingly. This is linked more generally to the failure to reflect proposed mitigation in the SA at site level.
2.25 It is disappointing to note that our recommendation as part of our previous submission to evaluate individual sites and settlement with regard to the associated economic, social and environmental benefits, including the provision of an expanded school at Oakley, have not been taken on board and reflected in the SA Update.
2.26 We continue to support a ‘hybrid’ scenario that would contribute towards the achievement of sustainable development through village related development outside of the A421 corridor, delivering a greater balance of net gains in accordance with national policy and guidance. This is notwithstanding our continued assertion that Oakley, on the basis of the Council’s own sustainability scoring, should be moved to the Key Service Centres category of the settlement hierarchy.
2.27 We shall return to SEA matters in Chapter 4 below.

4.0 UPDATED OVERVIEW OF THE SUSTAINABILITY APPRAISAL AND SITE SELECTION PROCESS
4.1 We have set out the legislative and policy framework above in respect of SEA and SA, notably Regulation 12(2)(b) and Schedule 3, paragraph 8.
4.2 As we have set out above, we do not consider that the SA has assessed reasonable alternatives to the plan’s policies in a number of respects. We have also identified a number of other flaws, which we itemise here.
4.3 At the outset, it is apparent that there has been very limited change between the Regulation 18 version of the SA and the Regulation 19 version. This was a significant missed opportunity to conduct a proper assessment of reasonable alternatives.
i) Chapter 2: Introduction
4.4 Paragraph 2.8 sets out the paragraphs and content considered relevant to each of the Schedule 2 paragraphs 1-10. The Council consider that against each of the 10 criteria, the SA provides sufficient detail and content. However, as outlined earlier within this representation we consider that there is a failure to reflect the benefits/disbenefits of the individual sites. Aligned to this, mitigation is only considered at a higher level and the potential mitigation that would make otherwise unsustainable sites, suitable, have not been considered in sufficient detail. For example, regarding the Council’s later reference to mitigation regarding the prioritisation of delivering community services and facilities this is within the context of any site option within village locations providing for these benefits being disregarded outright. Accordingly, we do not consider that the SA as drafted is consistent with Schedule 2 of the SEA Regulations.
ii) Chapters 7 and 8: Reasonable Alternatives
4.5 Chapter 7 is the key chapter in which the Council should have set out the reasonable alternatives and then carried out the requisite comparable assessment.
4.6 At [7.12] it is explained that the “detailed work” on specific strategy options contained within the Development Strategy Topic Paper (“DSTP”) was based upon a series of assumptions as to the potential capacity of each broad location for housing growth, informed by the quantum of development put forward through the call for sites process. It is however immediately apparent in the framing of those Options at [7.13], notably Option 3c, that the assumptions artificially imposed caps on the figures for Rural Service Centres (and for Key Rural Service Centres), without reference to the call for sites process. Page 7 of the Development Strategy Topic Paper asserts that this figure was an “assumption for testing” and the “figure adopted in the Local Plan”. But this completely fails to reflect that the Local Plan 2040 was a fresh assessment, with a specific plan objective to meet the growth target. There is no reference across either SA or the DTSP to settlement capacity, e.g. availability of services. The blanket choice of 35 dwellings for the RSCs means that there has been no attempt at all to consider reasonable alternatives of figures higher than 35 in such settlements. That is notwithstanding the obvious advantages in respect of meeting the overall housing requirement, meeting local communities’ needs for housing and associated infrastructure and a range of other benefits.
4.7 From [7.17] onwards, the SA purports to conduct an assessment of detailed sites. But it consists of a series of lists that essentially summarily dismiss all such sites, purely on the basis of location/local caps. It is remarkable that the Council have not considered any “options for the sitting of development” and restricted their assessment only to “total number of dwellings in broad locations”. This is especially given the repeated recognition above each list that the sites are “potentially able to make a contribution to meeting housing or employment need”, including under [7.23] “Village related growth”. [7.23] does not provide any adequate explanation, beyond an overarching reference to village related growth being a “less sustainable type of location for growth”. Given that a number of the sites can realistically address the housing need, that explanation falls well short of what Regulation 12(3) requires.
4.8 This means that an artificial cut-off has been imposed within the SA. Broad locations outside of the urban area have not been subject to the same level and degree of testing as those within the urban area. Indeed, they simply have not been assessed at all, purely on the basis of conflict with the strategy.
4.9 We (and other consultees) have repeatedly observed that village-related growth could complement the preferred strategy, with sites that can contribute early in the plan period.
4.10 This also gives rise to serious site/settlement-level deficiencies because there has been no assessment of how benefits/disbenefits and significant environmental effects will arise from constraining growth. One such example is that Oakley, where the school expansion required at Lincroft Academy will give rise to significant positive environmental effects if delivered. However, if the Plan remains in its current form there will be significant negative environmental effects (in respect of population and transport movements and across each of the social, economic and environmental pillars of sustainable development),
4.11 Just as in Heard and in Ashdown Forest, the SA is based on a pre-determined approach with an arbitrary cut-off. This has completely prevented assessment of a realistic option, any other level of growth within individual villages and any of the specifically identified sites.
4.12 We echo our observations above as to settlement capacity. This is an extremely well- established process, whereby the ability of a settlement to cater for specific levels of growth is undertaken. It is inherent in NPPF 20a, 23, 35 and especially 66 and 79 that individual settlement capacity must be assessed.
4.13 This is particularly important where the Council were provided with an abundant source of site-specific information through the Call for Sites. The SA literally discards this exercise as not relevant to the question of assessment.
4.14 All of these defects are then carried over into Chapter 8, notably [8.13] when the appraisal is described. It is said that there is “little to distinguish them” but that is because the options have fixed the same amount across all of the villages, without any of the requisite capacity assessment.
4.15 Turning to the question of timing after [7.24], it is stated that the options for the trajectory being both stepped and not stepped are tested. However [8.33], [9.14] and Appendix 9 do not explore how the trajectory can be met with a different strategic approach. It is said that no negative effects are identified under a stepped approach, but this wholly fails to address the problem of delays to meeting housing needs now.
iii) Chapter 9: Developing the preferred approach
4.16 The arbitrary nature of the assessment process is exemplified by [9.9] where two sites are included on the basis of meeting strategic green infrastructure priorities, without assessing the extent to which other sites can deliver the same benefit in this location or elsewhere across the Borough, within the villages.
iv)
4.17
Conclusion
In summary, this is a clear-cut case of non-compliance with Regulation 12(2)(b). In place of assessment of reasonable alternatives, there is a significant gap. Single paragraph dismissals and long lists of summarily rejected sites do not amount to a consideration of alternatives. The SA is wholly defective both legally and for the purposes of soundness.