Inspector – Next steps for North Essex Garden Communities

Letter here

1. Thank you for your letter of 19 October 2018 setting out the North Essex
Authorities’ [NEAs’] views on the way in which they would like the
examination of the Strategic Section 1 Plan [the Plan] to be taken forward.
I am sorry for the delay in replying but, as you know, I wanted to seek the
NEAs’ response to correspondence regarding the legal compliance of the
Sustainability Appraisal [SA] process before doing so. I will deal with that
matter under the SA heading below.

2. I have considered the contents of your letter and the three documents
enclosed with it: the Summary of NEAs’ ongoing evidence base work, the
North Essex Local Plan Section 1 Additional Sustainability Appraisal Method
Scoping Statement prepared by LUC, and the legal opinion of Mr LockhartMummery
QC dated 8 August 2018.

In what follows I aim to respond where necessary to the points and queries
in your letter and, where relevant, the enclosures. However, as you will
appreciate, I am not able to express any view on whether or not your
proposals will enable the Plan to be found sound. Nor would it be
appropriate for me to comment on the merits of any suggested change to
the Plan.
4. For ease of reference, my letter uses the same sub-headings as yours.
References in square brackets [X] below are to specific paragraphs in your
Agreed approach
5. I understand from your letter that the NEAs wish to proceed broadly along
the lines described as Option 2 in my letter of 8 June 2018 [2-4]. In this
regard, I welcome your statement that the NEAs will ensure that the Plan,
and the evidence base to support it, are progressed with strong evidence of
constructive engagement and involvement with local communities
throughout the plan, and acceptance derived locally [3].
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. I assume that the last sentence of paragraph [2] of your
letter is to be read in that context.
7. I note that the NEAs propose a revision to the Plan to include a review
mechanism in the event that strategic infrastructure investment does not
come forward as planned [5]. I assume that consultation on any such
proposed revision would take place alongside consultation on the updated
evidence base and SA [17]. In addition, it is likely to be subject to
discussion at the examination hearings. Moreover, as you will be aware, if
the proposed revision (or any other proposed change to the Plan) materially
affected any of the policies in the submitted Plan, it could only be made if I
considered it necessary to make the Plan sound and recommended it as a
Main Modification2
.The Evidence Base work programme (excluding Sustainability Appraisal)3
8. I have reviewed the document Summary of NEAs’ ongoing evidence base
work, which was enclosed with your letter. The first column of the table in
that document correctly identifies the issues in my post-hearings advice
letter to the NEAs of 8 June 2018 on which further work on the evidence
base is needed. For completeness, I would ask that paragraphs 72-
73 and 83-84 of my 8 June letter are also referenced in the
“Viability evidence” section, and that paragraph 132 is also
referenced in the “Infrastructure planning, phasing and delivery”
9. The second column of the table summarises the NEAs’ approach to
addressing the identified issues, setting out the scope of the further work
on the evidence base which is to be carried out. I have only one comment
to make on the contents of this column, as follows. It is unclear from
the summary whether or not the proposed further work on the
rapid transit system (RTS) is intended to cover all the points in
paragraphs 42 & 43 of my 8 June letter. I would be grateful if you
would provide further clarification on this.
10. As you will appreciate, it is not possible to for me to say at this stage
whether the outcomes of the further work summarised in the second
column of the table will adequately address the shortcomings I identified in
my 8 June letter. That will be for the examination to consider when the
further work is complete.
Sustainability Appraisal
11. I have reviewed the North Essex Local Plan Section 1 Additional
Sustainability Appraisal Method Scoping Statement [the LUC Method
Scoping Statement], which was enclosed with your letter. My comments
on it are set out in a table annexed to this letter (on page 8).
I would be grateful for a response to each of them. They are
provided without prejudice to any conclusions I may reach after considering
the final SA report and any written and oral representations made on it.
12. Lightwood Strategic wrote to the Programme Officer on 24 October 2018
raising, among other things, a number of points on the legal compliance of
the SA process for the Plan (the Lightwood letter is examination document
EXD/039). I am not inviting or accepting comments on the content andtimescale of your proposals for further work. But because the Lightwood
letter raised specific legal compliance points, I considered it necessary, first
to seek clarification from Lightwood of three points in their letter (see
document EXD/040), and then to seek a response to their letter from the
NEAs. The Programme Officer received the NEAs’ response on 19
November 2018 (document EXD/041).
13. Lightwood’s points concern (a) LUC’s proposal to use different evaluation
criteria from those used previously for the further SA work that they
propose to undertake, and (b) whether there has been a proper scoping
process for the Section 1 Plan as a whole. In respect of point (a), LUC
propose consultation with both the statutory consultation bodies (the
Environment Agency, Historic England and Natural England) and with
participants in the examination hearings over the scope and level of detail
to be included in the SA report4
14. I assume that the reference here to “participants in the examination
hearings” means all those who took part in the hearing sessions held
between 16 and 25 January and on 9 May 2018. Please confirm that
this is the case. I also infer from the LUC Method Scoping Statement and
the NEAs’ letter of 19 November 2018 that the proposed consultation will
include consultation on the revised assessment criteria that are to be used
in the further SA work. Again, please confirm that this is the case.
15. If my assumption and inference are correct, on the information currently
before me I consider it unlikely that substantial prejudice to any party
would arise specifically from changes in the evaluation criteria to be used in
the further SA work, given the extent of the proposed consultation process
on any such changes. However, I reserve the right to reconsider that view
in the light of any legal opinion(s) that may be submitted (see below).
16. Lightwood’s point (b) is a wider one, questioning whether the SA scoping
process, including consultation, that has been carried out for the Section 1
Plan as a whole is legally-compliant. The NEAs’ response on this is as
Initially each of the NEA local planning authorities was working on an individual
plan before the decision was made to combine the strategic sections of the Local
An SEA for that strategic section of the Local Plan was prepared taking account of
the responses from the consultation bodies. No complaint has been raised, to date,
about that approach5
. .Notwithstanding an absence of complaints, I suggest 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. 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 potentially
caused thereby is capable of being remedied, and what the necessary
remedial steps would be.
18. I note from their email of 5 November 2018 that Lightwood are seeking a
legal opinion on the points raised in their letter. It would be premature for
me to reach any finding on point (b) before I have seen that opinion and
any legal opinion that may be sought by the NEAs.

Overall programme
19. Proposed timescales for further work and consultation on the evidence base
and on SA are set out in your letter [17-23]. The NEAs are in the best
position to determine what resources are needed to carry out the further
work, and how long it is likely to take. I do not have the necessary
information to comment in detail on these points. In general terms,
however, I would advise that the NEAs should take as much time as is
needed to ensure that the further work addresses all the shortcomings in
the evidence base and the SA that were identified in my 8 June letter. In
order to avoid further delays to the examination, it is vital that all the
necessary further work is complete when the examination resumes, even if
that means extending the original timetable for its preparation.
20. I agree that it would be appropriate for the examination to be suspended
until all the NEAs have considered and approved the updated evidence base
and SA and confirmed their position on the Plan’s strategy [21]. If the
current proposed timetable is kept to, I confirm that I would be available to
carry out hearing sessions in June 2019. However, your proposal for a
monthly review and report on progress on the further work [22] is a
sensible one. It will enable the examination timetable, and the suspension
period, to be adjusted if that becomes necessary. I would like the NEAs
to provide a report to me at the end of each calendar month,
beginning at the end of November 2018.
21. For the avoidance of doubt, the monthly reports should deal only with
progress made in taking forward the necessary further work on the
evidence base and SA, and any necessary adjustments to the timescales for
this work. They should not provide details of its content, as it would be
inappropriate for me to consider evidence in preparation while the
examination is suspended.
22. Subject to my comments on paragraph 7 above, I am content for public
consultation on any changes which the NEAs may propose to the Plan to be
carried out alongside consultation on the evidence base and SA [18]. I will
provide comments on the proposed changes already suggested by the
NEAs, as set out in document SD002a, to you separately via the
Programme Officer by 21 December 2018 [19].
23. I would like to be advised of, and have the opportunity to comment on, the
NEAs’ detailed proposals for consultation on the evidence base, SA and any
proposed changes to the Plan, before the consultation arrangements are
finalised [17-18].
Examination process
24. Paragraph 214 of the current National Planning Policy Framework (July
2018) makes it clear that the policies in the previous Framework apply for
the purposes of examining plans, where those plans are submitted on or
before 24 January 2019. Because the Plan was submitted for examination
in October 2017, I confirm that the policies in the previous Framework
(March 2012) apply for the purposes of examining it [24]. Similarly, any
previous guidance in national Planning Policy Guidance [PPG] that has been
superseded since the current Framework was published will continue to
apply for the purposes of examining the Plan6
25. I acknowledge the NEAs’ concern to ensure that they and other
examination participants have an adequate opportunity to respond to
issues raised on the further evidence that is to be prepared, including the
evidence on viability [25]. I will give further thought to your suggestions
for managing the submission of hearing statements and to the
arrangements for the hearing sessions. These are matters that can be
discussed, if necessary, once all the further work on the evidence base and
SA has been completed.
Adoption of Section 1
26. The legal opinion from Mr Lockhart-Mummery QC enclosed with your letter
advises that the NEAs may lawfully adopt their Section 1 Local Plans
separately from, and in advance of, their Section 2 plans (subject to my
examination report finding that the Section 1 Plan is, or can be made,
sound) [26]. I note that the NEAs do not seek any further comment on this matter [27]. In any case it would be inappropriate for me to comment on
it, as my jurisdiction over the Plan will come to an end when my report is
issued. Section 23 of the 2004 Act7 makes it clear that whether and when
to adopt the Plan are matters for each NEA to decide.
27. I am grateful for the NEAs’ constructive proposals for taking the
examination forward. I have highlighted in bold above the points on which
I would like further information or confirmation. Once those points have
been resolved, I will be in a position to set the examination suspension
period, subject to review as explained in paragraph 20 above.
Yours sincerely
Roger Clews