Will ‘Arc’ new towns go the same way as the North Essex garden towns?

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Will the new towns of the so-called ‘Oxford-Cambridge Arc’ go the same way as the North Essex Garden Communities and fail under the Strategic Environmental Assessment Directive?

The Minister of State for Housing, Kit Malthouse MP, has written[1] to local authorities along the ‘Arc’, urging them to find sites for one million homes.  He says that government will soon be doing, “detailed analysis to explore potential locations for new settlements across the corridor”, and asks them to, “bring forward ambitious proposals for transformational housing growth, including new settlements”.    The letter, sent on 26 July, requests responses by 14 September.

This decision to proceed at great speed with what is essentially a government call for sites for new settlements, brings to mind comments by CAUSE’s barrister, Martin Edwards[2] of Cornerstone Chambers.  He noted in an opinion on the North Essex Garden Communities[3] this January that[4]:

“…it could be said that the relative haste in which these proposals emerged from central government raises questions as to whether the planning system in general, and the SA/SEA process in particular is being manipulated for reasons of political expediency. It also leads to concerns as whether there are any identified legal difficulties in central government or the NEA seeking to utilise the New Towns Act 1981 and given that this legislation pre-dates the SEA Directive and its implementation in the UK and, therefore, may be incompatible with EU legislation in the absence of proper SA/SEA of the overall concept of new garden towns and villages in the 21st century.”

and

“…the nature and scope of central government’s involvement may well be a central issue in any section 113 legal challenge and, if so, both the NEA and central government will be bound by the duty of candour to disclose to CAUSE, and to the court, full details of all contact (whether meetings, emails, correspondence and telephone discussions) between all those involved at the NEA and in central government (including ministers and senior officials)in order to establish whether the normal principles of planning law, and the public participation requirements of the Aarhus Convention, have not been circumvented or ignored.

The same could perhaps be said of the call for new settlements in the ‘Arc’.

The findings of a report for the National Infrastructure Commission on housing in the ‘Arc’ by consultancy 5th Studio do not appear to have been taken into account by Mr Malthouse[5].  The report assessed a variety of scenarios, including growth through nine different settlement typologies[6].   Garden towns are not the only way, nor probably even the best way, to plan for growth.  In fact, the north Essex proposals for three new towns with a total of 42,000 homes have highlighted starkly the difficulties of building large settlements from scratch.  A planning inspector wrote to the north Essex authorities in June finding the proposals unsound.

This will matter at the point when plans are submitted to the Planning Inspectorate.  An Inspector will examine proposals against the requirements of the SEA Directive.   The aim of the directive is to ensure that “individual Parties integrate environmental assessment into their plans and programmes at the earliest stages, and thus help in laying down the groundwork for sustainable development.”  Key points that will be looked at are:

  • Alternatives – Has the public been presented with an accurate picture of what reasonable alternatives there are and why they are not considered the best option (paragraph 5.12 Directive guidance)? In the ‘Arc’, this will mean that there must be justification for garden towns versus other scenarios, such as those presented by 5th Studio.  It is also likely that the one million homes target, far higher than that already in local plans[7], and seemingly plucked from the air, could be challenged.
  • Consultation – Has consultation been an inseparable part of the assessment of alternatives and have the results of consultations been taken into account[8]? Has anyone in the ‘Arc’ been asked if they consider an ‘Arc’ a good idea, or if new settlements are the best way forward?  Has public consultation been capable of exerting appropriate influence on a draft plan?  If a plan becomes largely settled before the development of an environmental report, the fulfilment of the Directive and Regulations may be placed in jeopardy and the proposals may be subject to challenge.
  • Pre-determination – Has the process tested whether what started out as preferred should still end up as preferred[9]?

The headlong rush towards new settlements in the ‘Arc’, and arguably, the unjustified growth target of one million homes, without thorough consideration of alternatives, may well be storing up trouble for later stages.

There is an opportunity now to learn from the North Essex Garden Communities.  The authorities’ (supported by government) decision here to concentrate housing in three very large new towns, without proper alternatives, has led to the unravelling of the proposals and an unsound plan.

Far better to take time to assess all options properly and work with the public, as the SEA Directive requires, and as the inspector has requested the north Essex authorities to do now.

Appendix 1:   Letter from Kit Malthouse, MP

KitMalthouseJuly2018pg1

KitMalthouseJuly2018pg2

 

Appendix 2:   5th Studio scenarios

5thStudio9Scenarios

Appendix 3:  5th Studio housing numbers

 

5thStudioHousingNumbers

 

[1] Appendix 1

[2] https://cornerstonebarristers.com/barrister/martin-edwards/

[3] Found unsound by an Inspector on 8 June 2018 https://www.braintree.gov.uk/info/200643/section_1/1065/section_1_examination_publication_local_plan/4

[4] Paragraphs 34 and 36  http://www.cause4livingessex.com/wp-content/uploads/2017/07/5.-Counsels-opinion-Thursday-12-April-2018.pdf

[5] https://www.nic.org.uk/wp-content/uploads/171122-NIC-Final-Report-5th-Studio-optimised.pdf

[6] Appendix 2

[7] Appendix 3

[8] Para 7.4 Directive Guidance http://ec.europa.eu/environment/eia/sea-legalcontext.htm

[9] Para 71 Heard vs Broadlands judgement