Plan for submission evidence base

Object

Representation ID: 10123

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

2.28 The Duty to Cooperate (DtC) is a legal requirement established through section 33(A) of the Planning and Compulsory Purchase Act 2004, as amended by Section 110 of the Localism Act. The DtC requires local planning authorities to engage constructively, actively and on an ongoing basis with neighbouring authorities on cross-boundary strategic issues through the process of ongoing engagement and collaboration.
2.29 As is discussed further below, whilst we have more significant concerns relating to soundness and legal compliance relating to the SA and site assessments and the application of a stepped trajectory, we also consider the proximity of the Little Barford new settlement to Huntingdonshire and the associated implications, has been given insufficient consideration in the prepared Position Statement.
2.30 The allocation of Land at Little Barford is a strategic cross boundary matter with the potential that Huntingdonshire District Council, given the closer relationship with the population and settlements of Huntingdonshire than that of Bedford, will consider that growth in this location will be capable of accommodating the needs of their population. The Position Statement sitting within the evidence base does not reflect this relationship and the impact on Huntingdonshire’s needs. Further cross-boundary engagement is considered necessary and should be reflected in an updated Position Statement that considers housing need, deliverability and engagement with infrastructure providers.
2.31 In terms of the Position Statement relied upon (signed 1 April 2022, prior to publication of details within the Plan for Submission) this simply states in relation to housing provision that further cooperation may be required ‘subject to its location’. Plainly at the time this statement was completed Bedford Borough Council was aware of the proposed allocation at Little Barford within its selected strategy. The Council would also plainly be aware of Huntingdonshire District Council’s objection to either Option 2c or 2d including new- settlement scale growth in this location, as outlined in its Preferred Options consultation response8.
2.32 We would note particularly those elements of the representations that relate to the feasibility and achievability of satisfying infrastructure requirements at the site (including new rail crossings) and the related impact on lead-in and delivery timescales as being highly relevant to our objections regarding the Council’s proposed reliance on a stepped trajectory and lack of evidential support for unprecedented completion rates in excess of 600 units per annum. For example, the objections from Hunts DC note:
“Huntingdonshire District Council acknowledge that this site is likely to benefit from being in closer proximity to a new East-West rail route where a new station is expected along the East Coast Mainline Railway between St Neots and Sandy and thus has greater potential to incorporate sustainable modes of transport. However, there is still uncertainty on the location of an East-West railway line station and when it may be delivered. Additionally, there is also the timing and delivery of the proposed realigned A428 route which will impact the eastern edge and southern aspects of the site to consider. These may give rise to delays in effective masterplanning of the site, mix of land uses, incorporation of sustainable and accessible transport and its eventual delivery.”

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.

Object

Representation ID: 10351

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

The approach to preparation of the Plan for Submission Local Plan 2040 is not legally compliant in respect of the Sustainability Appraisal process.

Bedfordia has engaged at all previous consultation stages undertaken as part of plan-making for the Local Plan 2040. These representations should be read alongside the detailed Regulation 18 representations (Representation ID: 7450) submitted previously. Our client’s land has been registered under Site ID 832 (Land at Station Road, Oakley) and is considered capable of accommodating around 210 dwellings additional to those allocated within the ‘made’ Oakley Neighbourhood Plan.

These representations should be read alongside the Site-Specific Statement – Land at Station Road, Oakley and Spatial Strategy and Legal Compliance Representation Report, both of which are appended.

Our main submissions concern the proposed Plan and the methodology and conclusions of the Sustainability Appraisal. The Environmental Assessment of Plans and Programmes Regulations of 2004 (SEA Regulations) are not satisfied. These concerns were first identified in a ‘Review of Draft [2021] Sustainability Appraisal Findings’ included at Appendix 6 of our client’s previous representations.

The Council has not adequately accommodated the requirements mandated by Policy 1 of the adopted Local Plan 2030 and the need for an immediate review in terms of assessing a full range of reasonable alternatives to the same level of detail as the selected option, namely fully assessing the potential effects of detailed site options for allocations across the settlement hierarchy.

Circularity in the site evaluation and Sustainability Appraisal processes highlights the basic faults in the Council's strategy. The Strategic Housing Land Availability Assessment process was used to determine the suitability of sites, according to paragraph 9.13 of the 2022 Sustainability Appraisal, whereas Table 2.2 of the SHLAA document justifies the exclusion of sites at Stage 1 of the assessment where they ruled inconsistent with the Council's chosen strategy.

This might be taken as confirmation that the Council has already decided on its preferred strategy before conducting further testing. It has also chosen not to consider all other growth options out of pure conflict with the unjustified decision to reject all village-related growth and limit any potential contribution from this component to the spatial strategy.

Not one of the proposed site options at Key Service Centre or Rural Service Centre locations is deemed suitable, available, or feasible under the SHELAA process, therefore further testing is prohibited on this basis even if the SA partially recognises the option and sustainability of village-related expansion (i.e., a "reasonable alternative") (see paragraph 7.13). The sites have merely been rejected due to what seems to be a contradiction with the spatial approach; they have not been evaluated for suitability under Stage 2 of the SHLAA process or subjected to any other thorough examination. Accordingly, the assessments do not provide a robust justification for the approach taken to site selection and supporting growth.

All village sites in all settlements are judged similarly as being in conflict with the spatial strategy. The SHLAA determines that any village sites are "inconsistent" with the plan. This circular reasoning cannot be used to support the conclusion that the suitability of site options should not be further evaluated, nor should strategy options for levels of growth in rural areas (or at specific settlements) be tested in greater detail or through more iterations than were undertaken prior to the Regulation 18 consultation stage.

When village-related growth has been tested under the Sustainability Appraisal process, it remains the case that testing has only been done with the presumption that all settlements at the same level of the hierarchy will have "flat" development quanta (500 units in Category 1 villages and 35 units in Category 2 villages). This is the same approach to the Local Plan 2030, which deferred allocations to Neighbourhood Plans as part of a foreshortened plan period and prior to substantial changes to national policy in the NPPF2021. It is fundamentally unjustified, having already received on ‘reprieve’ on the requirements for sound strategic plan-making and noting failures in the delivery of the current strategy and the explicit requirements for immediate review, not to update this aspect of the methodology.

The Council’s current position is also further contradicted by the conclusions of previous SA exercises (January 2018 and September 2018) exploring options for either an increased housing requirement or extended plan period (i.e., the same as the requirements now necessitated by Policy 1) that demonstrated that higher levels of growth (4,000 or 5,100 dwellings) at Key Service Centres could be just as sustainable as new settlement options. There is therefore no justification why levels of additional growth broadly in-line with these parameters is now viewed as ‘inconsistent’ with the strategy and not capable of complementing a hybrid approach.

Whether or not the Council will unjustifiably claim it has ‘run out of time’ to look at matters in the greater detail, the Council’s position is directly at odds with paragraph 3.10 of the 2021 Development Strategy Topic Paper informing the Regulation 18 Draft Plan:

“For the purpose of defining the options, assumptions need to be made about the potential capacity of each broad location for housing and employment growth. It is very important to note at this stage that these assumptions are for the purpose of testing only. They are informed by the quantum of development put forward through the call for sites process but they are not based on specific site appraisals (which will form the basis of further testing following this consultation).” Therefore, as drafted we consider that the SA is not legally compliant and contributes towards the wider soundness failings of the selected strategy.

Object

Representation ID: 10352

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

Reference sites 839 / 832

This representation relates to Land East of Station Road, Oakley. This representation should be read alongside previous Regulation 18 consultations (Representation ID: 7450 / Site IDs: 839 / 832) (Appendix 1) and Indicative Masterplan Proposals (Appendix 2). This Statement should also be read alongside the overarching Spatial Strategy and Legal Compliance Representation Report covering our clients’ wider interests and accompanying representations forms.
1.3 Consideration is given to the development potential of our clients’ land at Oakley, and these representations provide a response in respect of the draft policies relating to the spatial strategy and scale and distribution of housing of housing provision.
1.4 We object to a number of the draft Policies contained within the publication version of the Bedford Local Plan 2040 and consider that in their current form, they would not be found sound at Examination. Further, as outlined within these representations, we do not consider that the Sustainability Appraisal has been prepared in line with the requirements of the SEA regulations and thus do not consider the Plan as drafted is legally compliant.
In-keeping with the approach of our clients at previous consultation stages these representations should be read in parallel with those prepared on behalf of the Meridian Academies Trust (MAT) which seek recognition within the plan-making process of the significant increase in the pupil roll be accommodated through the expansion of Lincroft Academy. These representations support the proposed reclassification of Oakley as a Key Service Centre and endorse the further assessment of potential benefits that would result from the reconfiguration of the current land uses East of Station Road.
1.6 Further to representations to the last consultation stage, heads of terms are agreed between the two parties, as landowners, to deliver a ‘land swap’ and enable provision of the ‘one-site’ solution and additional improvements outlined here. The final detail of this agreement is capable of completion within a short timeframe.
1.7 MAT has continued to progress the proposed 'land swap' due to the uncertainties generated by the failure of the Local Plan process to recognise the requirements for expansion of Lincroft Academy and the significant funding gap that needs to be addressed to secure the minimum increase in capacity that is necessary.
1.8 Furthermore, even where there is an acceptance of the need for expansion of Lincroft Academy from Bedford Borough Council there is no guarantee of funding from alternative sources such as the ESFA in relation to replacing existing out-dated facilities.
1.9 Were the funding gap for these minimum requirements to be filled this would not in any case ‘complete the picture’ in terms of making best use of MAT’s interests. This is specifically in terms of delivering additional benefits from relocation of the existing playing pitches for both Lincroft Academy and Oakley Primary Academy as well as the wider community.
1.10 Negotiations have therefore been continued to provide a potential alternative source of funding to address the funding gap and to confirm the feasibility of securing additional benefits beyond the minimum requirements identified. We reiterate the availability of land East of Station Road and as per the representations submitted previously, we believe that this is a matter where Bedford Borough Council would ordinarily welcome further engagement and assessment of the site option in light of known educational and infrastructure requirements.