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Blackwater Valley Environmental Justice

Briefing 7 July 2000


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Rushmoor Local Plan - Grounds for a Second Public Inquiry

Having regard to the fact that the Council is both proposer and judge of the Plan's contents, together with the intrinsic importance of the issues of third party risk and noise, I think it may be perverse not to give considerable weight to fairness and to the importance of independent scrutiny of the new issues relating to those matters as a result of the Proposed Modifications. -- Michael Bedford, barrister for Rushmoor Borough Council

Background

Monday 19 June 2000, Rushmoor Borough Council held a planning meeting. Without any debate or discussion it voted to recommend immediate adoption of the modified Local Plan. Thursday 29 June 2000, the modified Local Plan was placed before the full council where an overwhelming majority of councillors following the recommendations from committee voted for immediate adoption of the modified Local Plan. Unless there are objections and the Secretary of State calls in the modified Local Plan it will come into effect on 4 August 2000 opening the door for the TAG planning application.

A Local Plan is drawn up to reflect the needs and aspirations of a local community. It is the broad framework within which future planning decisions are made. Its contents and approval should be based on broad local consensus.

DETR guidance:

The preparation of local plans ... gives the community the opportunity to influence the detailed policies and specific proposals for the future development and use of land in their area. Because the plan forms the statutory basis for planning decisions, it is important that local people are involved in its preparation.

Rushmoor Borough Council have singularly failed in their Local Plan in meeting any of these objectives. In their desire to satisfy the needs of a foreign-based company they have ridden roughshod over the people of Farnborough and the surrounding areas. The officials have shown contempt in the way they have ignored every legitimate objection, the councillors have shown contempt in the way they have rubber-stamped the recommendations coming from the officials. Many councillors did not even bother to look at their bundle of official papers, though we doubt they would have understood the contents if they had done so. The consultation exercise was kept deliberately low key to ensure as few as possible of the local community heard about it and objected. Over a thousand objections to the original Local Plan, over a thousand objections to the TAG planning application, less than a hundred to the TAG-driven modifications to the Local Plan. The contempt for the local community was summed up by the comments council leader John Debenham made before the planning committee: 'I would not wish to embarrass my colleagues with a second Public Inquiry.'

Well it may come as no surprise to John Debenham but we would wish to embarrass him and his colleagues with a second Public Inquiry and we have every intention of doing so.

The advice given to Rushmoor by their own barrister Michael Bedford gave several grounds for calling a second Public Inquiry: new information, changes to the Local Plan, ignoring advice from Planning Inspector, objections from the public. In the interests of fairness all these issues have to be tested in an independent forum.

Had the councillors troubled to read their own legal advice, provided at our expense, they would be well aware of the need for a second Public Inquiry. The advice given in a presentation to Rushmoor by Sue Jenkins and the advice given by Robin Purchas QC (the authority cited by Bedford) reiterated and emphasised the need for a second Public Inquiry. Purchas went so far as to suggest that the failure to call a second Local Inquiry could be seen as unlawful.

In the circumstances, where there is acknowledged to be new evidence such that new issues have arisen in respect of this discrete but publicly important consideration of public safety and the airfield, it is difficult to see why there should not properly be a further inquiry ... The failure of the Committee to consider these material considerations was in my opinion unlawful and as such open to challenge.

There are many new issues which have not had the benefit of independent scrutiny. This is what Rushmoor fear and why they refuse a second Public Inquiry. Loaded as they are in favour of vested interests and big business, two-thirds of Planning Inquiries are decided in favour of local communities. Even where a development is not stopped, it can often be restrained, or its damaging effects limited. Could this be what Tory leader John Debenham was thinking of when he said 'I would not wish to embarrass my colleagues with a second Public Inquiry.'

Legal Arguments

The Court of Appeal accepted [Stirk v Bridgenorth (1996)]:

... where a council is both proposer and judge, the obligation to deal thoroughly, conscientiously, and fairly with any objection is enhanced. Here the overall impression that emerges is that the council closed its mind and stubbornly reiterated throughout a policy which it had been warned from the outset was doubtfully tenable.

Rushmoor has failed to discharge its obligation of fairness. It has refused to listen to objectors. At the planning meeting there was no discussion, no debate. Minds were closed and made up. At council, there was a stubbornness not to heed the legal advice or to listen to any rationale argument. Those councillors who spoke in favour of immediate adoption showed an appalling level of ignorance and pig-headedness.

Robin Purchas QC established the basis for calling a further Public Inquiry [Drexfine Holdings Ltd v Cherwell DC (1998)]:

Where there is no issue or objection to be considered, a second inquiry would generally be unnecessary, costly, and lead to delay. However, Parliament did consider it appropriate to expressly provide the authority with the power in its discretion to hold a further inquiry. The fact that a proposed modification involves issues which have not been subject to consideration at the deposit stage could be a material consideration in determining whether or not a further inquiry should be held.

Purchas established five principles, known as the Drexfine Principles, as the bench-mark against which are measured the desirability of a further Public Inquiry:

Rushmoor's barrister Michael Bedford used the Drexfine Principles to establish the desirability or not of calling a further inquiry.

new issues -- third party risk - PSZ - noise

Cogent though this material appears to be [NATS and RMC reports], it only serves to underline the fact that in relation to third party risk there is now a wealth of new evidence which has not been subject to debate or independent scrutiny. [5.4]

... the debate concerning the proper interpretation of Public Safety Zone policy ... can be said to have raised new issues.... views expressed by DETR ... not been subject to debate or independent scrutiny. [5.5]

In my view the objections to the Proposed Modifications to noise controls also raise new issues... the specific numeric limit of 28,000 ATM now being put forward (and the implications for the noise environment of the local community) was not subject to debate. Objectors have challenged the rationale for this limit. The Council's reasons for choosing it ... raise new issues which have not been subject to independent scrutiny. [5.6]

Thus in relation to the objections to the Proposed Modifications concerning third party risk and noise I consider that new issues have been raised and that this is a material consideration pointing to the holding of a new inquiry into the objections raising those issues. [5.7]

government advice

As noted below, Bedford advises that government advice 'points to the holding of a new inquiry'. [6.3]

material benefit

The key benefits flowing from a second inquiry are the testing of the rival contentions and evidence at the Inquiry itself and the independent scrutiny provided by an Inspector. Where issues are are contentious and involve the assessment of detailed technical evidence then in my view it has to be concluded that this process will is potentially of material benefit because the Council, as ultimate decision maker, will be better informed as a result. [7.2]

The issue of third party risk and noise fall into this category. I have no doubt that subjecting the new evidence to independent scrutiny would improve the ultimate decision ... On these issues, therefore, this is also a material consideration which points to a second inquiry. [7.3]

delay

Bedford notes that a further inquiry would introduce delay in the adoption of a Local Plan. The status quo would prevail. The local community would not be disadvantaged by a delay. The only party disadvantaged would be TAG, as noted in the report placed before the planning committee: 'The planning application by TAG was submitted last September and remains undetermined.'

fairness

Bedford waffles, merely noting that either way whether an inquiry is called or not it would introduce unfairness to one party or another. We would argue that for fairness to prevail, especially in the light of the manner in which this has been dealt with to date by Rushmoor, points to an independent inquiry.

Conclusion

A local authority is required to balance all the above and come to a decision by application of its planning judgement. On the one hand we have many arguments calling for a second inquiry, on the other hand only delay arguing against. A weighting can be applied, which may change the balance. We would argue that safety outweighs all other considerations, especially as we are only talking of a delay of several months. There are therefore very clear grounds, when applying the Drexfine Principles, of calling for a second inquiry.

Compliance with government policy would also point to the calling of a second inquiry. There is no government policy on flying or airfield expansion, and unlikely to be for several years, thus compliance is not a factor. Expansion of flying does not comply with government policies on sustainable development, greenhouse gas emissions, ozone depletion. Expansion of flying at Farnborough fails to comply with government policy on PSZs, noise environment for education establishments.

Under the Kyoto agreement the UK government is committed to CO2 reductions of 20%. The Royal Commission on Environmental Pollution has recommended deep cuts of 60% (in line with the recommendations of the Intergovernmental Panel on Climate Change).

The DETR Draft Circular on Public Safety Zones states (15 June 1999):

The consequence of an aircraft crashing into certain types of development, such as a hospital, school or sports stadium, may be expected to have a very great societal impact because of the nature or number of third party casualties. Societal concerns are very difficult to assess on a numerical basis. Nevertheless, the local planning authority may wish to consider restricting such forms of developments within areas of greater extent than the Public Safety Zones, themselves, and in particular just beyond the boundaries of the Zones.

Farnborough College of Technology would be within the PSZ. As would a play school on Alexander Road.

The increase in noise would fail to comply with government policy PPG 24 'Planning and Noise' which regards schools as noise sensitive. The upper limit for noise sensitive areas is 60 dB. TAG, on 20,0000 movements (their application is for 25,000), would place Farnborough College of Technology within the 63 dB noise contour. Higher levels of flying (Rushmoor are attempting to raise the ceiling to 28,000 and TAG have publicly stated they wish to see a much higher ceiling) would worsen the situation. The average noise contours underestimate the problem, cf peak noise. Students at FCoT would be at an educational disadvantage compared with those at a quieter location.

To override or ignore a Planning Inspector's recommendations there has to be overwhelming grounds. Rushmoor has not demonstrated such grounds. To reject the recommendations of the Public Inquiry on a whim has made a mockery of planning process and turned the 2-3 months Public Inquiry at which all sides were able to present their case under detailed cross-examination before an impartial adjudicator into an expensive farce.

Of grave concern is the decision to reject the recommendations on safety.

That the number of movements be restricted by safety considerations (the risk of an accident over the approach must not exceed 1 in 100,000).

This would limit the number of movements to less than 10,000. Rushmoor are proposing 28,000.

Government policy requires local people to be involved in the 'preparation of the Local Plan' and to be given 'the opportunity to influence the detailed policies and specific proposals'. Local people were denied that opportunity, their submissions were ignored.

Other issues not discussed include the operation of vested interests, Tory links with TAG, sponsorship of events in the Borough by BAE Systems (major backers of TAG and airfield expansion) and the crude attempts to gag with bogus charges of 'vested interests' councillors who are attempting to act on behalf of the local community.

We are calling for a second Public Inquiry to enable all these issues to be subject to independent scrutiny. We are urging people to write to the Government Office of the South East (with copies to John Prescott MP) asking that the Local Plan be called in and for the Secretary of State to call a second Public Inquiry. Objections must be lodged with the Secretary of State on or before 4 August 2000. What we have seen so far in Rushmoor has been a travesty of local democracy: Officials out of their depth (and failing to engage in constructive dialogue with local experts), councillors who have failed to understand the issues (and who have not troubled to find out), a complete disregard for public safety (Rushmoor have still not commissioned the promised study on safety), contempt for the local community (objections were simply ignored).

	Director of Planning
	Hampshire & Isle of Wight
	Government Office for the South East
	Bridge House
	1 Walnut Tree Close
	Guildford
	Surrey  GU1 4GA

	tel 01483 882 300
	fax 01483 882 339

	cbyrne@go-regions.gov.uk
	www.go-se.gov.uk

In their recent advice to local authorities the government had this to say:

The Secretary of State advises authorities to hold an inquiry where objections raise matters which were not at issue in the earlier stage. This may arise, for example, if it is proposed to substitute an entirely different proposal for one which was in the plan as considered earlier ... so that the objections made to the proposed modification include new evidence ...

Commenting on this advice, Michael Bedford had this to say:

Clearly ... it is obvious that this advice also points to the holding of a new inquiry into the objections raising new issues.

We ask the Secretary of State to heed his own advice and grant a second Public Inquiry to enable all new issues to be subject to detailed independent scrutiny. To not do so would be in the words of Michael Bedford 'perverse'.


Notes

Rushmoor intend to post notice of the intent to adopt the modified Local Plan in the local press on 7 July and 14 July. This gives 28 days from the first date to lodge an objection, ie objections must be lodged with the Secretary of State on or before 4 August 2000.

BVEJ Briefing, an expanded version of the article 'The fight goes on ....', BVEJ newsletter #0002, July 2000.

Quotes from Michael Bedford taken from the paper 'Land at Farnborough Aerodrome: Further Opinions', 12 June 2000.

DETR, Local Plans and Unitary Development Plans: A Guide to Procedures, DETR, 1999

RBC, Agenda: Planning and Transportation Committee, Rushmoor Borough Council, 19 June 2000

RBC, Agenda and Reports of Committees to Council, Rushmoor Borough Council, 29 June 2000

Keith Parkins, Objections to Rushmoor's alterations to Inspector's Report on Rushmoor Local Plan (Farnborough Airfield), July 2000


Briefing index | Farnborough Airfield
BVEJ Briefing 7 July 2000
Published by Blackwater Valley Environmental Justice
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