Uttlesford District Council Local Plan Examination · November 2018 (IED014) emphasised the importance of the local authorities being open minded regarding the Sustainability Appraisal

Uttlesford District Council Local Plan Examination Matter 1 05/19 Hearing Statement on behalf of Stebbing Parish Council

Hearing Statement

jb planning associates

Chells Manor, Chells Lane, Stevenage, Herts, SG2 7AA

e-mail [email protected] url www.jbplanning.com

tel 01438 312130 fax 01438 312131

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Uttlesford Local Plan Examination Hearing Statement on behalf of Stebbing Parish Council

jb planning associates matter 1 hearing statement 05/19

Matter 1 – Hearing Statement

Legal / Procedural Requirements (Introduction) Introduction

1 This Hearing Statement has been produced on behalf of Stebbing Parish Council

(SPC) to supplement its earlier representations objecting to the Garden Community

being proposed to the West of Braintree (SP8), which expands across from Braintree

District into Uttlelsford District, and both directly and indirectly significantly impact

upon Stebbing.

2 SPC’s Regulation 19 representations refer in detail to the reasons for its objection to

the West of Braintree Garden Community proposals, the key reasons being:

Adverse landscape and heritage impacts;

Impacts upon the highway network, in particular upon the strategic A120 route

which currently suffers from frequent major congestion at Braintree; and

Serious doubts regarding its overall deliverability.

3 The main issue identified by the Inspector to be examined is:

Whether the Council has complied with the relevant procedural and legal requirements.

Questions:

Plan Preparation

Q.1) Is the Plan compliant with:

(a) the Local Development Scheme?

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4 Yes. Uttlesford District Council (UDC) approved Revision 14 of its Local Development

Scheme on 18 October 2018. The new LDS has been updated in order that the Plan

is compliant with the scheme.

(b) the Statement of Community Involvement?

5 Yes. The UDC Statement of Community Involvement largely contains good

intentions, rather than firm and specific requirements.

(c) The 2004 Act and the 2012 Regulations?

6 The North Essex Joint Examination Inspector’s letter to North Essex Authorities’ 21

November 2018 (IED014) emphasised the importance of the local authorities being

open minded regarding the Sustainability Appraisal (EXAM Document 2000.6).

“Later you say that the revised Sustainability Appraisal and the updated

evidence base will enable the NEAs to decide whether they wish to

pursue or amend the Plan strategy [14]. This indicates that the NEAs

are approaching the necessary further work on the SA and the

evidence base with an appropriately open mind and without

preconceptions as to the outcome. That is important if the further work

is to be carried out successfully…”.

7 The Examination Inspector also suggested1 that it would be prudent for the NEAs to

seek a legal opinion on whether the process they describe here meets the

requirements of the Environmental Assessment of Plans and Programmes

Regulations 2004, and in particular Regulation 12(5) in respect of consultation on the

scope and level of detail of the SA report for the Section 1 Plan as a whole, and that

the legal opinion would need to consider whether the relevant requirements of the

Regulations have been followed; and if any have not, whether any prejudice is

potentially caused and thereby capable of being remedied, and what the necessary

remedial steps would be.

8 The Inspector also highlighted2 a need to ensure that the further SA work was not

rushed.

1 EXAM Document 2000.6, Paragraph 17 2 EXAM Document 2000.6, Paragraph 19

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9 Appendix 1 to this Hearing Statement contains a copy of the Legal Opinion of C.

Lockhart-Mummery QC for the Essex Authorities with regard to the use of different

evaluation criteria from those used previously for the further SA work, and whether

there had been a proper scoping process for the Joint Plan as a whole.

10 The Legal Opinion acknowledges that it might have been preferable for there to have

been a separate scoping report prepared for the Section 1 Plan in June 2016.

11 SPC considers that there still remain significant legal challenges to the Joint North

Essex Plan. Given that this includes the majority of the proposed West of Braintree

Garden Settlement, and the fact that the same authors (Place Services) undertook

the SA’s for both the North Essex Authorities and UDC, the same legal deficiencies in

the approach undertaken applies.

12 In its February 2019 representations to the Updated SA Consultation, SPC set in

detail its fundamental concerns regarding the way the Local Plan and Sustainability

Appraisal were progressed, It refers extensively to key findings from the AECOM

Independent Review of the Uttlesford Regulation 19 Local Plan Sustainability

Appraisal (Regulation 19 Local Plan Consultation) – November 2018, these included:

The lack of alternative development strategies to take account of the

objectives to the Local Plan;

Non-compliance issues with Regulation 12 (2) of the SEA Regulations

which requires the SA Report includes an outline of the contents and

main objectives of the Plan;

A clear failure to justify the selection of reasonable alternatives;

A failure to produce an adequate Non-Technical Summary. It failed to

provide key information relating to the development and appraisal of

reasonable alternatives, and only briefly and inadequately explained

Garden Communities;

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Sustainability Appraisal

Q.2 Are the likely environmental, social and economic effects of the Plan adequately and accurately assessed in the updated Sustainability Appraisal (SA)?

13 No. The updated SA is an attempt to retrospectively justify decisions that were

previously made a considerable while ago.

14 SPC believes that that it is apparent that given the current very high level of doubt

regarding the deliverability of the West of Braintree Garden Community, it is now an

unsound allocation to include within the Uttlesford Draft Local Plan. It is currently

unknown whether as a result of the further Sustainability Appraisal work it will be

identified as a suitable allocation within the Braintree component of the North Essex

Joint Strategic Plan. If this does not happen, the Uttlesford component is incapable of

going ahead.

15 It is important to have regard to the content of the 2 August 2018 letter the North

Essex Joint Spatial Plan Examination Inspector (NEJSPEI) wrote to the North Essex

Joint Authorities (EXAM Document 2000.4) [IED013], in response to their letter dated

20 July 2018 (EXAM Document 2000.3) [NEA004] to provide further clarification of

the options. The Examination Inspector provided further clarity regarding the

implications of his initial findings.

16 Given that the North Essex Joint Examination Inspector has very clearly stated that

the Joint Strategic Plan cannot be made sound without the removal of the three

proposed garden communities from the Plan, including the West of Braintree Garden

Community, we consider that the same conclusion must apply to the Uttlesford Draft

Local Plan. Consequently, in order for the Uttlesford Draft Local Plan to be found

sound a Main Modification to it will be required, which will remove policy SP 8 and all

associated references to a new Garden Community to the West of Braintree.

“6. The consequence of that conclusion is that, on the basis of the

evidence currently before the examination, the Section 1 Plan

cannot be adopted if it contains the existing garden community

proposals. If the NEAs wish to pursue proposals for garden

communities – or an alternative form of strategic-scale development

– substantial further work needs to be done to develop the evidence

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to support them. My 8 June letter outlines the further work

required”.

17 The NEJSPEI has been very clear that one or more Garden Communities may, or

may not, feature in any revised Joint Plan. He has reiterated the importance of a

robust SA process that properly assesses alternative development options.

“7. Clearly the outcome of any further work could not be predicted in

advance. It might or might not result in proposals for one or more

garden communities, and/or for another form of strategic-scale

development. The crucial requirement is that any such revised

proposals must be supported by robust evidence, including

sustainability appraisal [SA], taking full account of the conclusions

and advice in my 8 June letter”.

“34. I do not agree that SA of the proposed main modifications would

have to assess the current garden community proposals as a

reasonable alternative. See paragraphs 24-25 above. However, the

limitations in the existing SA would need to be addressed when

preparing the evidence base for the partial revision”.

18 The Updated SA cannot assess the impact of the West of Braintree Garden

Community given that it is not yet apparent whether it will be confirmed as an

allocation in the North Essex Joint Spatial Plan, what precise form it will take, and

what associated highway infrastructure will be provided.

Q.3 Does the updated SA test the Plan against all reasonable alternatives?

19 SPC considers that the Sustainability Appraisal Addendum does not adequately and

appropriately assess the Alternatives to the West of Braintree Garden Community not

delivering new homes within the Local Plan period, or the dangers and difficulties of

delivering three Garden Communities simultaneously within a lowly populated district.

For instance, Alternative 5 (a return to a focus on the spatial strategy options that

explored two Garden Communities with more focus on existing towns and villages)

was not sufficiently considered. A more detailed review of these sites and any others

subsequently submitted should be undertaken in the context that there is a 970

dwelling shortfall that should be met.

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20 It is very important to recognise that the Updated SA has been produced after the

Regulation 19 Local Plan Consultation had already been concluded. Therefore, it has

had no direct influence over the shaping of the Local Plan itself.

21 SPC consider that the problem with the reasonable alternatives is the simplistic way

ECC Place Services went about undertaking the SA. It demonstrated a clear bias

towards a chosen outcome, rather than an open and transparent rigorous

examination of the actual technical evidence. It is entirely evident that it is the ECC

Place Services versions of the SA, rather than the AECOM work which has informed

and shaped the Draft Local Plan.

22 In relation to the ‘Identification and Assessment of Garden Community Reasonable

Alternatives – December 2016 to April 2017’, paragraph 4.46 of the Background

Paper specifies that in December 2016, twelve scenarios were identified to test the

housing quanta option of 14,100. These were set out in Table 87 in Appendix 1 of the

Regulation 18 Local Plan Sustainability Appraisal.

23 It is fully apparent that given that every single one of the twelve published options

made provision for 600 dwellings at West of Braintree, it is evident that this has

always been considered by UDC to represent a ‘given’, rather than a true option.

24 It is noteworthy that strong concerns were raised by the NEJSPEI Inspector

regarding fundamental shortcomings in relation to the Sustainability Appraisal. These

being:

the objectivity of the assessment of the chosen spatial strategy and the

alternatives to it,

the clarity of the descriptions of those alternatives and of the reasons for

selecting them, and

the selection of alternative GCs and combinations of GCs for assessment.

25 In his letter dated 8 June 2018, the NEJSPEI was quite scathing regarding the SA’s

lack of objectivity and reliability (EXAM Document 2000.1).

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“103. …I consider that in assessing the chosen spatial strategy against

alternatives that do not include GCs, the authors of the SA report have

generally made optimistic assumptions about the benefits of GCs, and

correspondingly negative assumptions about the alternatives, without

evidence to support many of those assumptions. As a result, these

assessments lack the necessary degree of objectivity and are therefore

unreliable”.

26 Furthermore, the NEJSPEI goes on to find that the SA failures are so serious that

they contravene legal requirements.

“109. I consider that the lack of clarity I have identified in the descriptions of

some of the alternatives to the chosen spatial strategy, and in the

reasons for selecting them, is likely to breach the legal requirements for

the SA report to provide an outline of the reasons for selecting the

alternatives dealt with, and for the public to be given an effective

opportunity to express their opinion on the report before the plan is

adopted”.

27 In the context of our Client’s opposition to the West of Braintree Garden Community,

the North Essex Inspector’s criticisms of the SA selection process are particularly

pertinent.

28 The NEJSPEI has identified a necessity for the whole SA process to be restarted,

and that this should include the alternative Monks Wood Garden Community option

on land to the east of Braintree.

29 The Joint Inspector concluded that provided that the alternative spatial strategies are

assessed objectively and with due regard to the evidence base, the second stage

assessment should provide a sound basis for the selection of a preferred spatial

strategy for the Plan (which may or may not include GCs)3.

30 It is, therefore, apparent that UDC currently has no sound basis for inclusion of the

West of Braintree Garden Community as an allocation within its Draft Local Plan.

3 EXAM Document, 2000.1, Paragraph 127

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Q.4 Have any concerns been raised about the updated SA?

31 Yes. SPC considers that given that the SA Update has been produced retrospectively

after the Regulation 19 Local Plan Consultation it can be awarded very limited

weight. It is evident that if UDC wish to persist with the West of Braintree Garden

Community, there needs to be a similar pause for appropriate Sustainability Appraisal

work to be undertaken, in a similar fashion to that being undertaken on behalf of the

North Essex Authorities.

32 Given that the North Essex Joint Examination Inspector has very clearly stated that

the Joint Strategic Plan cannot be made sound without the removal of the three

proposed garden communities from the Plan, including the West of Braintree Garden

Community, we consider that the same conclusion must apply to the Uttlesford Draft

Local Plan. Consequently, in order for the Uttlesford Draft Local Plan to be found

sound a Main Modification to it will be required, which will remove policy SP 8 and all

associated references to a new Garden Community to the West of Braintree.

33 As we have already indicated above, we consider that the North Essex Joint

Examination Inspector’s advice to Braintree, Colchester and Tendring Councils has

significant and fundamental implications regarding the suitability and deliverability of

the West of Garden Community. Even if it were ultimately to be successfully

navigated through the planning process, it is fully apparent that considerable further

work will first need to have been undertaken in order to demonstrate the overall

justification and appropriateness of the proposal. Accordingly, the timescale for

delivery will inevitably now be significantly delayed, and the delivery of 970 dwellings

from the proposed allocation by 2033 is now questionable.

34 We strongly believe that once evidence underpinning the proposed West of Braintree

Garden Community is reconsidered by the three Joint Authorities, there is a high

likelihood that more appropriate and sustainable locations for major new housing

development will be preferred.

35 SPC notes the content of the Place Services Regulation 19: Addendum of Focussed

Changes – Sustainability Appraisal (October 2018). It considers that the Addendum

completely fails to give sufficient weight to this very high level of uncertainty

regarding the West of Braintree Garden Community Option.

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36 Furthermore, in the context of the Local Plan only needing to address a 970 dwelling

shortfall that would arise over the course of the Plan period it seems inconceivable

that other alternative options are not readily available.

37 There is quite clearly an over-dependence upon Garden Communities and unrealistic

expectations with regards to their timing and delivery. Given the number of

“significant concerns and potential areas of risk in terms of legal challenge” identified

by AECOM we consider that UDC should go further than highlighting an “elevated

risk” in respect of the delivery of West of Braintree Garden Community and instead

remove the allocation from the emerging Plan. It should be replaced now by

alternative sites. SPC consider it noteworthy that whilst the Spatial Strategy

Background Paper identifies in Table 2.2: ‘Settlements around which urban extension

locations will be tested at first stage of further SA’ identifies only Colchester town for

Colchester Borough, and Clacton-on-Sea and Harwich / Dovercourt, Braintree

District possesses five settlements that will be investigated further (Braintree,

Bocking, Great Notley, Witham and Halstead).

38 This demonstrates the fact that there are other serious potential development options

that exist apart from the proposed West of Braintree Garden Community, and that

UDC might well find that the further SA work identifies more sustainable development

options exist. In which case, it will be replaced by proposed development elsewhere

in North Essex.

39 Moreover, it is commonly accepted that the Uttlesford element of the West of

Braintree Garden Community would be completely unsustainable on its own, without

the much larger Braintree District element.

Q.5 Have the Council complied with the requirements of section 19(5) of the 2004 Act with regards to SA?

40 UDC has commissioned Sustainability Appraisal documents at various stages of the

production of its Draft Local Plan. However, it is fully apparent that the Appraisals

prepared by Essex Place Services were seriously flawed (as they were for the

Appraisals prepared for the North Essex Authorities). These fundamental flaws

cannot be erased by the AECOM Updated SA which was produced after the

Regulation 19 Local Plan Consultation had already concluded.

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41 The National Planning Policy Guidance (PPG) makes it clear that Sustainability

Appraisal is integral to the preparation and development of a Local Plan, to identify

how sustainable development is being addressed, and that work should start at the

same time that work starts on developing the Plan. The relationship between the

sustainability appraisal and Local Plan preparation processes is shown in paragraph

134 (see Appendix 1).

42 The Sustainability Appraisal Process Table includes the following important

provisions:

Consult the consultation bodies on the scope of the SA Report;

Test the Local Plan against the SA Framework;

Develop the Local Plan Options against reasonable alternatives;

Evaluate the likely effects of the Local Plan and alternatives;

Consider ways of mitigating adverse effects and maximising beneficial effects;

and

Propose measures to monitor the significant effects of implementing the Local

Plan.

43 SPC considers that the SA undertaken by UDC, which was produced by Essex Place

Services is fatally flawed. It cannot be rectified by the post Regulation 19 Local Plan

consultation SA produced by AECOM, as it was the Place Services SA which

underpinned the production of the Local Plan. Consequently, further SA work is

4 PPG, Paragraph: 006 Reference ID: 11-006-20140306

https://www.gov.uk/guidance/local-plans--2

https://www.gov.uk/guidance/strategic-environmental-assessment-and-sustainability-appraisal#Sustainability-appraisal-process

https://www.gov.uk/guidance/strategic-environmental-assessment-and-sustainability-appraisal#Sustainability-appraisal-process

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required that completely re-evaluates the ‘reasonable alternatives’ in the same way

as that being undertaken for the North Essex Authorities.

Habitat Regulations Assessment

Q.6 Have the Council complied with the requirement of the Conservation of Habitats and Species Regulations 2017 with regards to Habitats Regulations Assessment (HRA)?

Q.7 Are the likely environmental, social and economic effects of the Plan adequately and accurately assessed in the Habitats Regulations Assessments?

Q.8 In response to our initial question regarding HRA, the Council said that the HRA was being updated. When will this be available? Have Natural England been consulted on the updated HRA and if so what comments did they make?

44 We note the content of Natural England’s letter to Uttlesford District Council, Harlow

District Council, East Herts District Council, Epping Forest District Council,

Chelmsford City Council and Braintree District Council alerting the authorities to an

emerging evidence base linked to the adverse effects of recreational pressure at

Hatfield Forest Site of Special Scientific Interest (SSSI) and National Nature Reserve

(NNR).

45 We would question whether the likely environmental, social and economic effects of

the West of Braintree Garden Community element of the Plan can be adequately and

accurately assessed in the Habitats Regulations Assessments given the current

uncertainty regarding its associated transport infrastructure. In particular, in relation

to the precise location and nature of improvements to the A120 and A12.

Other Matters

Q.9 Does the overarching strategy of the Plan secure the development and use of land which contributes to the mitigation of, and adaptation to, climate change consistent with S19(1A) of the Planning and Compulsory Purchase Act 2004? If so, which are the relevant policies?

46 Section 19 (1a) of the Act requires that ‘Development plan documents must (taken as

a whole) include policies designed to secure that the development and use of land in

the local plan authority’s area contribute to the mitigation of, and adaptation to,

climate change’.

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47 SPC considers that whilst there may be opportunities to utilise bus services to and

from Dunmow and Braintree, neither of these two towns are of a sufficient scale and

size in terms of facilities and services, to mean that a high proportion of future

inhabitants of a West of Braintree community will are likely to utilise them.

48 Furthermore, both Braintree and Uttlesford itself suffer from a serious commuter

outflow. Consequently, it seems likely that the vast bulk of journeys undertaken by

future habitants of a garden community would be by private vehicles, and often to

locations some distance away. This is considered to be a particularly important issue

given existing serious traffic congestion levels on the A120 and associated harmful

air quality implications.

Q.10 How have issues of equality been addressed in the Plan?

49 -

Q.11 Regulation 9 sets out the form and content of the adopted policies map and explains that it must illustrate geographically the application of the policies in the adopted development plan. Is it clear which policies in the plan have a geographic illustration on the policies map? Should all such relevant policies state that their geographic illustration is shown on the policies map? As things stand, the key to the policies map does not refer to any policies.

50 Yes, it would seem desirable that policies in the Plan that have a geographic

illustration on the policies map make reference to this fact, especially where it would

aid clarity in terms of their implementation.

Q.12 The Council’s response to Initial Question 19 provides details of the sustainable community strategy (SCS) (and subsequent strategies) which it has had regard to in preparing the Plan. Is the table detailing the spatial objectives and how they meet the SCS included in the Plan? Should the SCS be referred to specifically in the Plan?

51 Yes.

Q.13 Regulation 8(5) expects the Plan to set out where a policy is intended to supersede another policy in an adopted development plan. Appendix 1 refers to replacement policies but is not explicit in stating which are superseded. Does Appendix 1 meet the terms of the Regulations?

52 It is important that the Final version of the Plan provides clarity regarding which

policies are now being superseded.

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Q.14 Does the Plan period need to be made clearer?

53 Yes. It would be helpful if the precise Plan period could be made more evident at the

start of the Plan.

PC/1472/NW 30 May 2019



Appendix 1

Sustainability Process Table (Paragraph 13, PPG)

jb planning associatesChells Manor, Chells Lane, Stevenage, Herts, SG2 7AAe-mail [email protected] url www.jbplanning.comtel 01438 312130 fax 01438 312131

Documents

Uttlesford District Council Local Plan Examination · November 2018 (IED014) emphasised the importance of the local authorities being open minded regarding the Sustainability Appraisal