QUEEN'S BENCH DIVISION
33 Bull Street, Birmingham, B4 6DS
B e f o r e :
| THE QUEEN ON THE APPLICATION OF
WELCOME BREAK GROUP LIMITED
BROOKTHORPE WITH WHADDON PARISH COUNCIL
HARESCOMBE PARISH COUNCIL
CAMPAIGN AGAINST MOTORWAY SERVICE AREA
|- and -
|(1) STROUD DISTRICT COUNCIL
|- and -
|(2) GLOUCESTERSHIRE GATEWAY LIMITED
Satnam Choongh (instructed by Martin Evans solicitor, Stroud District Council) for the Defendant
Martin Kingston QC and Peter Goatley (instructed by Keystone Law) for the Interested Party
Hearing dates: 17 - 18 January 2012
Crown Copyright ©
Mr Justice Bean :
"The Local Bodies' shared concern is that there will be substantial harm caused by the proposals in visual terms and, in particular, to the Cotswolds Area of Outstanding Natural Beauty. The MSA is to be situated in the third Claimant's parish and the proposals will, the local bodies believe, significantly affect the local residents who they represent. The instant application is made by all five parties because of the common interest which they share in ensuring that a development which they believe to be both unjustified and harmful is properly and adequately considered through the appropriate statutory processes. Given the extremely limited financial resources of the Local Bodies, Welcome Break and Roadchef have considered it appropriate to make themselves fully responsible for the costs of making this application."
"(a) The Council failed to take into account Welcome Break Group Limited and Roadchef Limited's ("Welcome Break and Roadchef") objections on need. Further, the Officer's Report was significantly misleading in the approach which it took towards need in the light of those objections. The Report failed to deal with the substance of those objections and the Committee was deprived of the opportunity of understanding the opposing case which had been made against the need for the MSA.
(b) The Council failed to take into account policy NE8 of the Stroud Local Plan and the Officer's Report was significantly misleading in so far as it dealt with landscape impacts.
(c) The Council failed to consider an objection to the proposal from Natural England. The Officer's Report was significantly misleading in the approach which it took towards Natural England's representations.
(d) The Council took into account as a reason for granting permission a series of obligations contained in the section 106 Agreement which failed to comply with Regulation 122 of the Community Infrastructure Levy Regulations 2010 and which were, consequently, immaterial to the merits of the proposal. Further, the Council failed to consider properly or at all Regulation 122.
DfT Circular 1/2008
"6. MSAs and other roadside facilities perform an important road safety function by providing opportunities to the travelling public to stop and take a break in the course of their journey. Government advice is that motorists should stop and take a break of at least 20 minutes every two hours. Drivers of heavy goods vehicles (HGVs) are subject to a regime of statutory breaks and such facilities offer the opportunity for this.
9. New and existing roadside facilities are subject to the provisions of the Town and Country Planning Act 1990 and the Planning and Compulsory Purchase Act 2004 which together set the framework under which local planning authorities are to consider applications for such developments. The Secretary of State for Transport is designated as a statutory consultee and the Highways Agency exercises this function on his or her behalf, giving advice on applications in respect of road safety and traffic management issues.
14. The primary function of the SRN [Strategic Road Network] is to facilitate long distance transportation of people and goods. Service areas are signed from the SRN on the basis that they will provide essential services to road users. The potential risk to safety that is created by additional accesses and egresses is balanced by the increase to safety offered by refreshed and alert drivers.
31. The Highways Agency will continue to assess the impact of any roadside facilities proposal on traffic flow and safety. It may oppose particular developments when the location is considered unsuitable, where, for instance, there are existing capacity or infrastructure constraints. Roadside facility proposals may also be weighed against the achievement of other policy objectives for the SRN. However the LPA [local planning authority] will continue to determine the planning merits of any proposal.
Spacing of Roadside Facilities on Motorways
52. Policy on the spacing of roadside facilities on motorways needs to balance the road safety benefit of allowing drivers regular access to services with the potential detriment to safety, traffic flow and the environment of developments alongside motorways and at motorway junctions.
53. Drivers are encouraged to stop and take a break of at least 20 minutes every two hours. Drivers of HGVs are required by drivers' hours' legislation to take a break at specified intervals. Research has shown that up to 20 per cent of accidents on monotonous roads (especially motorways) are caused by tiredness. However, roadside facilities introduce new on-and-off motorway movements that have their own safety implications and may disrupt the free flow of traffic.
54. There is also a need to limit developments alongside motorways and motorway junctions to mitigate the impact of strategic roads on the environment. This applies particularly, though not exclusively, to open countryside and areas of planning restraint such as National Parks, Areas of Outstanding National Beauty (AONBs), the Green Belt and sites that either are themselves, or may affect, Sites of Special Scientific Interest (SSSIs). Finally, any development accessed from a motorway (including roadside facilities) risks the creation of additional local journeys that would not previously have been made.
55. The existing network of MSAs has evolved around the long-standing spacing criterion of 30 miles. This was based on the premise that drivers should be given the opportunity to stop at intervals of approximately half an hour. However, at peak hours, on congested parts of the network, travel between MSAs can take longer than 30 minutes. Further, 90km/h (56 mph) speed limiters for HGVs limit the distance they can travel in 30 minutes to a maximum of 28 miles (45km). Any new application for a core MSA should therefore be considered on the basis of a 28 miles (45km) distance, or 30 minutes travelling time, from the previous core MSA, whichever is the lesser.
56. The absolute minimum acceptable distance between facilities on the same route is 12 miles.
57. All existing MSAs and new facilities that have been registered in the planning systems prior to the date of publication of this document (which subsequently receive planning consent) and any future sites that fill existing gaps in the core network must provide the required features of a site having that status.
58. Where a clear and compelling need and safety case can be demonstrated, applications for an infill service area may be considered. Individual cases will need to be treated on their merits, and it is not possible to prescribe a comprehensive list of the factors which it might be appropriate to consider in every case. There are, nevertheless, a number that are likely to be of importance in virtually all cases. Planning authorities therefore will be expected to have considered at least:
- The distance to adjoining roadside facilities;
- Evidence (such as queuing on the roadside facility approach roads or lack of parking spaces at times of peak demand) that nearby existing roadside facilities are unable to cope with the need for services;
- Evidence of a genuine safety-related need for the proposed facilities (such as, for example), a higher than normal incidence of accidents attributable to driver fatigue;
- Whether the roadside facility is justified by the type and nature of the traffic using the road; the need for services may, for example, be lower on motorways used by high percentages of short-distance or commuter traffic than on those carrying large volumes of long-distance movements.
59. Where infill sites are proposed, the Government's preference will be that they should be located roughly halfway between MSAs, unless it can be shown that an off centre location is more suitable in either operational, safety or spatial planning terms or in its ability to meet a particular and significant need. The Government will not agree to more than one infill site between any two core MSAs. Where the spacing between two existing MSAs is 40 miles or greater, any infill site that might be permitted will also be designated as a core site and must provide the required range of facilities.
Social and Environmental Responsibility
158. The Highways Agency expects operators of roadside facilities to conduct business in a socially and environmentally responsible manner and to act in the best interest of their customers, staff and the wider community. Operators should encourage their customer and staff to behave in an environmentally responsible manner by providing recycling litters bins where appropriate, promoting sustainable waste practices and ensuring the premises and surrounding environments are clean safe and secure. Customers should be able to choose from a range of healthy options with products sourced from local providers where possible."
The Officer's Report to the Committee
7.1 Since the previous appeal decision on the site in 1994 there have been other significant changes in planning legislation and policy that must be considered.
7.2 The principal change is with the publication of Circular 01/2008. This Circular replaces previous guidance contained in Road Circular 01/94, the MSA Policy Statement of 1998 and Annex J to Circular Roads 04/94. The dismissed 1994 appeal relied on the previous guidance and the Inspector's decision letter needs to be carefully considered. This scheme is also considerably different as the detailed design is substantially different from the 1994 proposal.
7.4 The Stroud District Local Plan was adopted in November 2005. The policies of the Local Plan expired on 10 November 2008 unless they were saved by a Direction made by the Secretary of State under the provisions of the Planning and Compulsory Purchase Act 2004. This led to the deletion of many Policies, including NE9 (which relates to 'special landscape areas'), in deference to paras. 24 & 25 of PPS7 and the need to apply landscape character assessment. Accordingly PPS7 is particularly relevant. NE9 related to "special landscape areas". One of these was the area between Robinswood Hill and the Cotswolds AONB, which included the application site.
7.5 On 20 May 2010, the Cotswolds Conservation Board adopted a position statement on "Development in the setting of the Cotswolds AONB". This Statement provides guidance to regional and local planning authorities, landowners and other interested parties regarding the consideration of the impact of development and land management proposals which lie outside the AONB but within its "setting". It has been taken into account in considering the MSA proposal.
7.6 In considering this application, the provisions all national, regional, county level and local planning policies have been considered. These are listed below and detail firstly whether they are relevant and if so in what capacity."
[The report proceeded to list a number of national planning policy statement, national planning policy guidance documents and county structure planning policies. The latter category included the following:]
"Policy NHE.4 In Areas of Outstanding Natural Beauty the conservation and enhancement of the natural beauty will be given priority over other considerations. Regard will also be had to the economic and social well-being of the AONB. Provision should not be made for major development within the AONB unless it is in the national interest and the lack of alternative sites justifies an exception.
Policy NHE.5 Provision should not be made for development that would detract from the particular landscape qualities and character of Special Landscape Areas. The broad locations of Special Landscape Areas are as follows: the north eastern fringes of the Cotswolds; on the southern fringes of the Cotswolds near Cirencester, Tetbury and Fairford; the upland western and southern parts of the Forest of Dean District between Gloucester urban area and the Cotswolds, including Robinswood Hill; and Chosen Hill in Churchdown. The precise boundaries of, and additions to, the Special Landscape Areas will be identified in local plans."
8.1 DfT Circular 01/2008 titled "Policy on service areas and other roadside facilities on motorways and all-purpose trunk roads in England' issued in April 2008 sets out the standards and guidelines for the provision of on-line service areas. It supersedes previous guidance contained in Road Circular 01/94, the MSA Policy Statement of 1998 and Annex J to Circular Road 04/94. This new Circular is the principal material change since the dismissed appeal in 1994.
8.2 When the Stroud District Local Plan (SDLP) was adopted in November 2005 there was no identified need for a MSA, and no specific policies or land allocation relating to an MSA are contained in the Plan. Therefore the SDLP cannot be wholly relied upon as the basis for this decision. Indeed Section 38 (6) of the Planning and Compulsory Purchase Act states that development should be in accordance with the development plan unless material planning considerations indicate otherwise.
8.5 Many of the statutory consultee comments have relied upon guidance that has been superseded. They have not commented on Circular 01/2008 or any other more recent Highways Agency publications. To comment that the SDLP does not stipulate a requirement for an MSA is correct. However it ignores the fact that planning policy at national level has evolved to respond to current national requirements. In taking local planning policy forward now it is necessary to consider the appropriateness of an on-line core MSA facility.
8.12 A core MSA is defined as one that allows drivers to take adequate rest breaks in line with the 28 mile/30 minute drive time and drivers are encouraged to take a rest break of 20 minutes every two hours. HGV drivers are subject to their own restrictions.
8.13 Core facilities are therefore required in the interests of highway safety and full facilities need to be offered. Circular 01/2008 stipulates that infill services would need to demonstrate a clear and compelling safety need; core facilities do not. The Highways Agency has confirmed that a core MSA is required along the M50 Ross-on-Wye to the M5 (Michaelwood services) and this is designated as a priority need. It is not listed as a "high priority" but is a priority nonetheless.
8.14 Paragraphs 52-61 of Circular 01/2008 discuss the spacing of roadside facilities on motorways. Research has shown that up to 20% of accidents on monotonous roads (especially motorways) are caused by tiredness. This however needs to be offset against the safety implications introduced by the provision of additional on and off motorway movements, which may disrupt the free flow of traffic.
8.15 The existing network of MSAs has evolved around a spacing criterion of every 30 miles. This was based on the premise that drivers would be given the opportunity to stop at intervals of approximately half an hour. At peak times and due to road congestion, travel time between MSAs can take longer than 30 minutes. In addition, HGVs can have speed restrictions (maximum of 56mph) which would allow them to travel 28 miles in 30 minutes. Therefore a core MSA should be considered every 28 miles (45km) distance or 30 minutes travelling time from the previous MSA; whichever is the lesser.
8.16 Circular 01/2008 states a presumption in favour of on-line sites over MSAs situated at junctions (off-line) as the latter are more likely to generate undesirable trips from the surrounding area. In addition, sites that are located further away from the motorway network might discourage drivers from stopping to rest. On-line provision creates fewer vehicle manoeuvres and therefore reduces the risk of accidents occurring.
8.17 The stretch of motorway that relates to this application with regard to the strategic road network is the M50 from Ross-on-Wye to Michaelwood on the M5. This has one of the greatest deficiency of on-line MSAs. The gap between Ross-on-Wye and Michaelwood is 53.5 miles. People travelling the M50 eastbound and then heading south along the M5 have no on-line access to an MSA until Michaelwood, as Strensham services are situated to the north of junction 8. Whilst some objectors question how many drivers use this route, it is nonetheless a substantial gap in the network. Indeed, in March the Highways Agency confirmed that vehicle flow and journey choices were not applicable in the assessment of need as identified in the circular. HGV drivers in particular may favour this route. Climatic conditions also sometimes cause problems on the Severn Bridge.
8.18 In respect of the route between the M50 and the M5, it exceeds the 28 miles distance or 30 minutes travelling time to a core MSA, therefore a core MSA needs to be provided."
"9.5 The previous appeal Inspector commented that this site was not an appropriate place to site an MSA. However in light of the changes in policy and guidance, it is considered that a core MSA is now required and any site would potentially have a landscape impact along the 3.34 mile stretch. Indeed the AONB follows Gilberts Lane, but to the north follows the M5, which would take in any potential sites north of this application site.
9.6 Circular 01/2008 states at paragraphs 52-61 the regulations on the spacing of roadside facilities. Only infill MSAs need to have a clear and compelling case and not core on-line MSAs. The requirement for a core on-line MSA is regulated by the 28 mile/30 minutes drive time criteria.
9.7 The existing southbound site has an extant planning permission for use as an off-road racetrack and therefore has ceased as agricultural land.
9.8 The current proposed scheme is significantly different to the 1995 scheme that was dismissed at appeal. Firstly, this is a full application, the 1994 scheme was an outline application with all matters reserved. The 1994 appeal decision was based on the policy framework outlined in PPG13 (Transport) which was issued in March 1994. However this was subsequently revised, updated and reissued in March 2001. A substantial difference being that Annex A (Motorway and road side service areas) was deleted.
9.9 On balance it is therefore concluded that planning policy has significantly changed since the 1994 appeal decision and the most relevant national policy framework is found in DfT Circular 01/2008.
9.10 It is considered that through a strict interpretation of policy and through the applicants submitted highway safety information that there is a need for an additional on-line motorway service area. The proposed site appears to comply with the requirements of DfT Circular 01/2008."
"10.2 The overriding thrust of the policies seek to protect the rural landscape and land designated as Areas of Outstanding Natural Beauty or special landscape interest.
10.3 The site is at the bottom of a valley with landmark viewpoints on the hills above. The Cotswolds Area of Outstanding Natural Beauty boundary line runs along the east site of the southbound site. The application site itself is not within the Cotswolds Area of Outstanding Natural Beauty.
10.6 Views of the site are easily obtained from Robinswood Hill and from along the Cotswold escarpment. However, most of these views are long range and higher level and take in most of the extensive panoramic view available out towards the Severn Valley and beyond. When looking down into the site, the motorway is clearly visible. The motorway is less obtrusive in the pleasant overwhelmingly green landscape. This is partly because the motorway is recessed into a slight cutting. This suggests that there may be more scope for the landscape to absorb a new MSA than is thought to be the case by some third parties.
10.8 Whilst it is considered that the immediate site is rural; however this is severely interrupted by the existing M5 motorway and the urban fringe of Gloucester to the north.
10.9 A further requirement for proposals in the countryside is for planning policies to provide a positive framework for facilitating sustainable development. The provision of an on-line MSA is considered to be sustainable; the traffic is already passing and on route to a terminal destination.
10.10 It is an inescapable fact that an MSA will have an adverse impact on the landscape. It is therefore necessary to examine how adverse that effect might be. In this respect consideration must be given to the comments from the CPRE, Natural England and the Cotswold Conservation Board.
10.11 In this regard SDC commissioned an independent landscape assessment by Nicholas Pearson Associates. They were required to undertake a review of the landscape assessment prepared as part of the Environmental Statement.
10.12 At paragraph 2.31 of their report, Nicholas Pearson Associates comment that;
"It can be seen that the impact are generally slight adverse or negligible/slight adverse with only a few character types having a negligible impact. This is consistent with the fact that the development is being proposed within a rural area, away from the settlement boundary, and adjacent to the sensitive landscape of the Cotswold AONB and areas of sensitive high ground of Robinswood Hill."
A full copy of the final written report from Nicholas Pearson Associates is attached at Appendix C. Plans are available on the website.
10.13 This site presents an unusual situation. The MSA does not constitute farm diversification or any other sort of enterprise requiring a countryside base. However, motorways as elements of strategic transport infrastructure inevitably pass through the countryside. It has already been noted that an MSA cannot easily be accommodated within urban areas. Therefore it is a matter of necessity that they are located within the countryside.
10.14 The proposed MSA will cause the landscape to be disrupted by spoiling its continuity. However it is considered that the building's grass roof and form allow blending in with the landscape……and it will not appear as a continuation of the motorway. Moreover substantial new tree/shrub planting is proposed to address the public viewpoints. The substantial new earth mounding allows the buildings to follow natural contours, and does help reduce the prominence of the motorway from some existing viewpoints. Photomontages and photographs from viewpoints will be displayed after the meeting.
10.15 As landscaping takes time to mature it is accepted that the parking areas and access roads would be hard to screen in the short term, especially when viewed from higher ground. Therefore the short-term impact will be greater. However, it is considered that the adverse impacts will diminish in the medium to long term as planting grows, matures and blends into the landscape.
10.16 On balance it is considered that there will be some adverse impact on the landscape but this will be limited."
"21.13 CAMSA (Campaign Against Motorway Service Area) submitted a 1089 signature petition against the scheme. The volume of responses from members of the public has been substantial and in order to accurately evaluate the responses, SDC commissioned Jeff Bishop of BDOR to undertake an independent evaluation/audit of the consultation undertaken.
The primary aims of the commission were to:
1. assess the soundness of the plans for all the consultation;
2. relate this to what was actually delivered and comment on the soundness of that;
3. consolidate and summarise the responses received;
4. evaluate the appropriateness of how the responses were dealt with;
5. draw overall conclusions about what took place.
A copy of the final report is attached at Appendix B.
21.14 BDOR Limited concludes that many of the changes to the proposed scheme relate to consultation responses regarding design and layout, not the principle of development. The need or principle has not been altered due to the outlined requirement for the provision of an additional core on-line MSA by the Highways Agency.
21.15 The main areas of objection from the public relate to need, visual impact, biodiversity/wildlife, pollution and traffic generation. These are very different to the reasons for support; local sourcing and quality design. BDOR Limited identified that the only shared issue was regarding economic benefits with the supporters seeing a genuine local benefit and the objectors querying the likelihood of the applicants delivering the benefits.
21.16 In addition, an objection from Savills and legal opinion of Rhodri Price Lewis QC, submitted on behalf of Welcome Break and Roadchef has also been received. It is considered that this is an objection from a commercial competitor and relates solely to the provision of an additional MSA and not to the protection of the countryside. The Opinion has been carefully considered in light of S38(6), relevant planning policies at every level and specific regard to the physical need as outlined in Circular 01/2008. In addition, the conclusions raised by the Highways Agency with regard to need have also been highlighted as a material planning consideration.
A full copy of Mr Lewis QC's legal opinion appears at Appendix D.
21.17 It is considered that the DfT policy must be taken into account, as well as more other local issues such as landscape, employment and regeneration etc. DfT policy is a significant material consideration which attracts considerable weight in the overall planning balance. The legal opinion has also been fully considered in accordance with all relevant policies and guidance documented in the planning policy section of this report.
21.18 It is considered that the DfT policy advice is a significant consideration. However [it is agreed that this should read "Moreover"] the Highways Agency has stated that there is a need for an additional core MSA in this location and they have not stated that this proposal would be contrary to the DfT policy. As there is no doubt that there is a core gap in the provision of MSAs in this location, a safety need does not need to be justified in terms of meeting the objectives of the DfT Circular.
21.19 It is concluded that there is a requirement for a core on-line MSA on the M50/M5 stretch of motorway and it is noted that the Highways Agency has not objected to the proposal on either a need or highway safety basis." [emphasis in the original]
"22.1 The need for the MSA is implicit in the Highways Safety Spatial Planning Framework. Review of Strategic Network Service Areas and within the policy framework set out in Circular 01/2008, and the Highways Agency's response. It is concluded that there is a clear gap in motorway provision between the M50 and M5 route. This is a priority stretch of motorway and a core MSA can only reasonably be located within a small part of the motorway. On balance it is considered that the application site is appropriate and conforms to the policy requirements as set out in Circular 01/2008.
22.2 The Highways Agency is the national road network consultee and it is their responsibility and area of expertise. They have stated that there is a need for the provision of a core MSA facility and that the proposed MSA would help fulfil the policy aspirations and need.
22.3 It is concluded that the proposed development will affect the rural setting, however it is considered that the proposed landscaping scheme will help to mitigate any medium to long term effect. The site is not within the Cotswold Area of Outstanding Natural Beauty, however it does border it. It is concluded that the proposal is sensitive to its landscape setting and it will have a slight adverse impact on the landscape designation. This has been supported by the independent landscape assessment as carried out by Nicholas Pearson Associates Ltd.
22.4 The design of the buildings and site layout has been landscape led and has been congratulated by the South West Design Panel. It is considered that the detailed design reflects sustainable concepts alongside landscape mitigation measures that will seek to minimise adverse impacts on the landscape setting.
22.5 It is also significant that the scheme will provide considerable employment opportunities [sic] needed jobs, with measures to target areas of greatest need. The Section 106 agreement also provides control over local/regional food which should support local/regional agriculture.
22.6 On balance is it concluded that the regeneration and highway safety benefits of the scheme outweigh the slight concerns over landscape impact and that this application is clear and soundly based.
23.1 The application is therefore considered to comply with Policies indicated in the planning policy section above. Permission is recommended subject to a Section 106 agreement: covering local/regional food sourcing, employment co-ordinator, minibus/travel plan and monitoring cost contribution."
(1) Where an application is made to a local planning authority for planning permission-
a) … they may grant planning permission either conditionally or subject to such conditions as they think fit;
b) they may refuse planning permission.
(2) In dealing with such an application the authorities shall have regard to the provisions of the development plan, so far as material to the planning application, and to any other material consideration."
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
"The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority have regard for all material consideration, they are at liberty (provided they do not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.
This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State."
"The report by a planning officer to his committee is not and is not intended to provide a learned disquisition of relevant legal principles or to repeat each and every detail of the relevant facts to members of the committee who are responsible for the decision and who are entitled to use their local knowledge to reach it. The report is therefore not susceptible to textual analysis appropriate to the construction of a statute or the directions provided by a judge when summing a case up to the jury.
From time to time there will no doubt be cases when judicial review is granted on the basis of what is or is not contained in the planning officer's report. This reflects no more than the court's conclusion in the particular circumstances of the case before it. In my judgment an application for judicial review based on criticisms on the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken."
"Its purpose is not to decide the issue, but to inform the members of relevant considerations relating to the application. It is not addressed to the world at large but to council members, who, by virtue of that membership may be expected to have substantial local and background knowledge. There would be no point in a planning officer's report setting out in great detail background material, for example in respect of local topography, development plan policies or matters of planning history if the members were only too familiar with that material. Part of a planning officer's expert function in reporting to the committee must be to make an assessment of how much information needs to be included in his or her report in order to avoid burdening a busy committee with excessive and unnecessary detail."
"It is important that the principal issues and the key information are put to them, but it is not necessary, or indeed desirable, that the report should be exhaustive. Plainly there will always be room for dispute as to whether the report should in certain respects have been fuller, or whether certain guidance should have been expressly referred to, particularly in a development which is as large and significant as this one. But it is not for the court to second guess the officers. …"
"Democratically elected bodies go about their decision-making in a different way from courts. They have professional advisors who investigate and report to them. Those reports obviously have to be clear and full enough to enable them to understand the issues and make up their minds within the limits that the law allows them. But the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision for themselves. It is their job, and not the court's, to weigh the competing public and private interests involved."
Ground 1: Objections on the issue of need
"As the gap in service provision (from the end of the M50 at Ross to Michaelwood) is in excess of 50 miles, this proposal constitutes a core MSA. This gap in core provision on the SRN is one of half a dozen nationally which have been recognised by ministers, so this MSA would help fulfil the policy aspirations and need by filling one of these accepted gaps on our network…."
"…You have also got to weigh in the previous guidance in terms of journey times [and] in terms of the aspirations to have only a 28 mile distance, so there is a lot for you to consider in terms of need and it is for your judgment today… I think at the end of the day you have got to say to yourself who is responsible for highway safety in the county on motorways and that falls within the Highways Agency and their advice, and the advice to you this morning, is that this is a core MSA and you have got to weigh that up … So that's the advice we've given [about why the proposal constitutes a core MSA]; you have got to mull that over and come to a judgment and as I say you have got to be advised by what the objectors have said but equally you have to be advised by what the Highways Agency are saying."
Ground 2: Policy NE8 and Landscape Impact
"Within the Cotswolds AONB, priority will be given to the conservation and enhancement of the natural beauty of the landscape over other considerations, whilst also having regard to the economic and social well-being of the AONB. Development within, or affecting the setting of, the AONB will only be permitted if all the following criteria are met:
a) The nature, siting and scale are sympathetic to the landscape;
b) The design and materials complement the character of the areas; and
c) Important landscape features and trees are retained and appropriate landscaping measures are undertaken.
Major development will not be permitted unless it is demonstrated to be in the national interest and that there is a lack of alternative sites." [emphasis added]
Ground 3: Failure to consider the objection from Natural England
Ground 4: Regulation 122 of the Community Infrastructure Levy Regulations 2010
"Limitation on use of planning obligations
(1) This regulation applies where a relevant determination is made which results in planning permission being granted for development.
(2) A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is-
a) necessary to make the development acceptable in planning terms;
b) directly related to the development; and
c) fairly and reasonably related in scale and kind to the development.
(3) In this regulation – "planning obligation" means a planning obligation under section 106 of TCPA 1990 and includes a proposed planning obligation; and "relevant determination" means a determination made on or after 6th April 2010 –
a) under section 70 ……. of TCPA 1990 of an application for planning permission…"
"The test of acceptability or necessity suffers in my view from the fatal defect that it necessarily involves an investigation by the court of the merits of the planning decision. How is the court to decide whether the effect of a planning obligation is to make a development acceptable without deciding that without that obligation it would have been unacceptable? Whether it would have been unacceptable must be a matter of planning judgment. It is, I suppose, theoretically possible that a Secretary of State or local planning authority may say in terms that he or it thought that a proposed development was perfectly acceptable on its merits but nevertheless thought that it was a good idea to insist that the developer should be required to undertake a planning obligation as the price of obtaining his permission. If that should ever happen, I should think the courts would have no difficulty in saying that it disclosed a state of mind which was Wednesbury unreasonable. But in the absence of such a confession, the application of the acceptability or necessity test must involve the courts in an investigation of the planning merits. The criteria in Circular 16/91 are entirely appropriate to be applied by the Secretary of State as part of his assessment of the planning merits of the application. But they are quite unsuited to application by the courts."
"Obligations must also be so directly related to proposed developments that the development ought not to be permitted without them – for example, there should be a functional or geographical link between the development and the item being provided as part of the developer's contribution."