England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		17th July 2013

His Honour Judge Richard Foster :

1. This is an application for Judicial Review by the Claimant to quash the planning decision by the Defendant dated 21^st December 2010 granting planning permission for a mixed use development including 198 dwellings on the site of the former Holy Cross Convent School in Chalfont St Peter Buckinghamshire ("the site").
2. Permission has been granted to apply for Judicial Review on two grounds which the Claimant avers amount to errors of law. First, errors of fact in relation to the playing fields which form part of the site. Secondly, that the Defendant failed to have regard to the retention of the existing site.
3. The future use of the site has engendered considerable local interest. The Claimant describes the planning permission the subject of these proceedings as "the most significant planning issue facing the Claimant's community for the foreseeable future". It describes the site thus: "The site which this claim is concerned with has a depth of history reaching back into medieval times and including 17^th century associations with the Quakers and Judge Jeffreys". More recently the site and buildings have been operated by the Interested Party as a private convent school which closed in 2006. The Claimant and others within the local community have expressed an aspiration to re-locate the village school to the site, and more specifically have put forward proposals at various stages for a mixed use of the site including both housing and the retention of the existing buildings as a school, and for the sale of the existing village school for development.
4. The planning application under review was considered by the relevant committee of the Defendant on 5^th August 2010. The proposal was described as follows:

"Outline planning application with matters of access only to be considered in detail at this stage. The redevelopment of the site to provide a mixed use comprising up to 198 dwellings (Use Class C3), of which 35% will be affordable housing; the retention of the existing bungalow adjacent to the graveyard; a residential care home incorporating up to 74 bedrooms and up to 3,370 square metres (Use Class C2); retention of existing chapel; retention and relocation of existing playing field together with a provision of a network of permissive footpaths through the existing woodland for use by the public and provision of open space. The whole development is to be served from new and altered vehicle access from Gold Hill East, and Grange Road, and a new pedestrian access off Market Place, with associated car parking and off-site highway works."

5. The officer's recommendation was:

"Minded to grant conditional permission subject to the conditions set out below, with the decision deferred for referral of the application to the Secretary of State and for the prior completion of a section 106 Planning Obligation. Final decision delegated to Head of Planning Services".

The committee's decision followed this recommendation, and the formal approval under delegated powers was dated 21^st December 2010.

6. These proceedings have generated a large volume of documentation with bundles extending to many hundreds of pages. However, on a proper analysis, the issues are straightforward and much of the material placed before the court is irrelevant to those issues.
7. The first ground upon which permission to proceed with Judicial Review was granted alleges errors of fact in relation to the playing fields at the site. The original planning application submitted by the Interested Party dated 26^th February 2010 was subsequently amended to that considered by the Defendant's committee on 5^th August 2010. In response to the original application Sport England (by letter dated 6^th April 2010) objected on the grounds of loss of sports facilities and playing pitches. This letter set out Sport England's adopted Playing Fields Policy position which it is said accords with "Planning Policy Guidance 17: Planning for Open Space, Sport and Recreation" ("PPG17"). In accordance with this policy position Sport England will oppose development on playing fields unless at least one of five exceptional circumstances exists. The Interested Party (as applicant) relied upon Exception E1 which applies when there is an excess of playing field provision in the area. Sport England did not accept this.
8. The amended planning application took into account this objection and is summarised in the Officer's Report for the 5^th August 2010 meeting (at paragraph 10) thus:

"The original scheme submitted under this planning application did not include the retention of the playing field. As such it would have been for the applicant to show that there was no continuing community need for the facility. Furthermore, Sport England raised objection to the loss of the playing field. Subsequently, as stated previously the application has been amended and a revised scheme has been submitted which now retains the playing field. Whilst the layout remains only indicative at this stage, it does show the retained playing field, which is of the same size and shape as the existing playing field, to be relocated with this site".

The report goes on to point out Sport England's continuing objection on the basis that the retained playing field would not comply with Sport England's Exception E4 requiring that "the proposed development would be replaced by a playing field or playing fields of an equivalent or better quality". The report challenges Sport England's assumption that a far larger area of the site had been used as a sporting facility, and the officer suggests that the evidence provided by the Interested Party should be preferred.

9. The Officer's Report also advised the committee members not only on PPG17 but also on Policy R2 of the Adopted Chiltern District Local Plan ("policy R2"). This provided:

"Development which would result in the loss of any existing sports facility to a non-sports use will be refused, unless either of the circumstances set out below applies. An exception to this policy may be permitted in the following circumstances: (i) the applicant demonstrates to the satisfaction of the Council that there is no continuing community need for the facility and it is not possible to use the facility for other sport, OR (ii) alternative provision of at least an equivalent size, suitability and convenience, as defined in Policy R1 (i) and (ii) is made AND (iii) other policies in this Local Plan are complied with. For the purposes of this policy outdoor sports facilities include existing school playing fields, land used as school playing fields and equipped childrens' playgrounds".

10. The publication of the Officer's Report generated a further response from Sport England (by later dated 3^rd August 2010). This letter produced pictures which Sport England argued showed sporting facilities across the site, and not just in the concentrated area indicated by the Interested Party. The letter argued that the whole of a site on which there is at least one playing pitch is defined as a "playing field", relying upon the definition in Article 10(2) of the Town and Country Planning (General Development Procedure) Order 1995 (as amended) ("the 1995 Order"). Sport England had also previously sent to the Defendant a counsel's opinion supporting its view. The letter states:

"Having read the Committee Report, it is clear that the case in favour of this application rests on the definition of playing fields and the extent to which the proposals result in the loss of playing field. The Case Officer considers that the extent of playing field land within the application site which is that shown on the submitted Location Plan. This approach is incorrect, as a matter of fact". The letter concludes: "The development is entirely contrary to the provisions of PPG17 and Sport England Playing Field Policy. If the Committee Members are minded to grant permission (subject to a referral to the Secretary of State) it must do so knowingly that the development is contrary to these provisions".

11. The Claimant had also lodged detailed objections (dated July 2010) to the application, supporting the earlier Sport England objections and relying on PPG17.
12. I have been referred and given consideration to the available evidence of the conduct of the committee meeting on 5^th August 2010. The speaking notes of the officer indicate that he read out in full the Sport England letter of 3^rd August 2010 and showed committee members the aerial photographs of the site. These notes are followed by what would appear to be contemporaneous notes of the discussion, indicating a lively debate on, amongst other matters, the playing fields issue. There are also the minutes provided by the Claimant's own planning agents which again confirms this. The motion was carried by 8 votes to 2.
13. The author of the Officer's Report, Richard Turnbull, also dealt with the committee proceedings in his witness statement of 18^th April 2011. At paragraph 4 he states:

"I drafted the Officer's Report and attended Planning Committee on 5^th August 2010. After publicising my report, Sport England wrote their letter of 3^rd August enclosing aerial photographs of the application site and Counsel's Opinion concerning consultation requirements under Town and Country Planning (Procedure) Order 1996. The then Head of Planning, Carol Castle, relayed to members the legal advice which she had received, to the effect that the Opinion was concerned only with consultation requirements. I read out the letter and showed the photographs at the committee meeting. I also read out the interested party's response and showed the photographs produced by them as well as one in the Defendant's possession. There was a full discussion about the issue amongst members, with the local Ward Member, Councillor Darby, who was not sitting on the committee, describing her recollections of there having been more than one pitch. I see from the notes of the meeting taken by the Claimant's agent and the Defendant's Officer, Miss Payne, that members proceeded upon that basis".

14. Subsequent to the meeting and before the planning permission was granted the Defendant received a letter (dated 20^th August 2010) from Mr Nicholas Cray who has led the earlier campaign to retain the Holy Cross School on the site. He produced further evidence to support his views on the extent of the sports fields at the site. In his witness evidence Richard Turnbull stated that he considered this but decided it was not necessary to refer the matter back to the committee.
15. The application was referred to the Secretary of State, who also received further representations from the Claimant (amongst others) setting out fully its views on the playing fields issue (see the letter from the Claimant's planning agents of 25^th August 2010). By letter dated 15^th September the Secretary of State decided not to call the application in for his consideration, taking into account, amongst other matters, his policies for open spaces as set out in PPG17.
16. The Defendant's "Reasons for Approval" attached to the planning permission make it clear that the Secretary of State's views as well as other material received after the committee meeting were all material considerations.
17. It is clear from the Officer's Report and the discussion at the committee meeting that the playing fields issue proceeded upon the basis that exceptions (ii) and (iii) to policy R2 applied, namely alternative provision of existing sports facilities. Accordingly any criticism based upon the Defendant's assessment of need is irrelevant. Furthermore Sport England's interpretation of policy was not binding on the Defendant.
18. In my judgment reliance upon the definition of playing fields in the 1995 Order is unhelpful. That definition was for consultation purposes which necessarily one might expect to be a wide interpretation. What area amounted to playing fields on the site should not be interpreted in a legalistic way. Such a consideration must be fact specific in the circumstances of each planning application.
19. The committee had full knowledge of all the competing views and arguments. The members were also fully acquainted with all the relevant policy issues, including those of Sport England, of PPG17 and its own policy R2. In the end it came to a planning decision which in its view was policy compliant.
20. The Claimant's argument relies upon the Defendant coming to its planning decision based upon an error of fact as regards the extent of the playing fields on the site. Any such error of fact can amount to an error in law for the decision in question only in certain circumstances. The leading case is E. v. Secretary of State for the Home Department [2004] EWCA Civ 49, where Carnwath LJ said (at paragraph 66):

"First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been 'established', in the sense that it was uncontentious and objectively verifiable".

21. In my judgment there was clearly conflicting evidence as regards the extent of the playing fields on the site. This was all fairly placed before the committee. The officer set out why he believed the application complied with policy, including policy R2. There was also put before the committee the competing arguments. Nothing in the correspondence following the meeting changed that position so as to render any fact uncontentious. The Defendant made its decision taking into account all the relevant evidence and arguments. The committee was not misled as regards the availability of evidence. That decision and the basis upon which it was made cannot in law be criticised. Accordingly the Claimant's first ground of claim fails.
22. The second ground of claim relies upon a failure to have regard to the retention of the existing use.
23. Policy CSF2 of the Adopted Chiltern District Local Plan 1997 ("policy CSF2") provides as follows:

"Within the built-up areas excluded from green belt, the Council will not allow any development which results in the loss of the community service or facility on the site unless: (i) a replacement building and/or land can be provided in an equally convenient location that would comply with Policy CSF1, OR (ii) it can be demonstrated to the satisfaction of the Council that the facility is no longer required for its existing use, or for any other community use in the built-up area in which it is located, or in the District, as appropriate to the type of use under consideration, AND (iii) other policies in this Local Plan would be complied with".

24. The officer's report dealt with policy CSF2 in paragraphs 4 to 6. He pointed out that although the development would involve the demolition of the convent building itself, the chapel would be retained and there would be a new residential care home. It seems clear therefore that the officer was relying upon exception (i) to the policy, namely the provision of replacement community facilities.
25. More specifically in connection with possible continuing education use on the site the report stated: "there are no policies that presume against the specific loss of school premises and the Council has no control over this issue." It went on to state: "The Council is not in a position to require the landowner to use the site as a school and there are no planning policies that presume against the change of use of school premises". The report concluded that the proposed development was compliant with policy CSF2.
26. It is clear from the Claimant's Statement of Facts and Grounds, as expanded in its skeleton argument and oral advocacy, that the thrust of its complaint is that the Defendant did not give adequate consideration to the possible retention of the site for educational purpose, and as such have not complied with policy CSF2. Accordingly the officer's report is wrong and misleading.
27. In my judgment the Defendant was entitled to interpret policy CSF2 in a broad way. This was not the Defendant making the policy "mean whatever they would like it to mean" (as Lord Reed put it at paragraph 18 of his judgment in Tesco Stores Limited v. Dundee City Council [2012] UKSC 13), but rather because of the broad wording of the policy. It did not require like for like replication. The Defendant was entitled to consider the then current use of the site – or rather lack of use – as redundant private school buildings and compare this with what would be the outcome of the proposed development. Clearly the officer, and subsequently the committee, took the view that what would be provided was adequate to be policy compliant.
28. In its consideration of the possible use of the site as a school the Defendant was entitled to take a view upon the likelihood of this happening in the light of the information available to it. It was well aware of the history of the closure of the convent school in 2006 and the failed attempts to prevent that closure. It was also aware that the Local Education Authority had no plans to acquire the site notwithstanding the aspirations expressed by the Claimant and others within the local community to relocate the village school to the site. In this regard I would refer to my judgment in the associated proceedings in which the Claimant sought to challenge the Defendant's Core Strategy and my findings regarding the feasibility of the Claimant's proposals for the site – see The Queen (on the application of Chalfont St Peter Parish Council) v. Chiltern District Council [2013] EWHC 1877 (Admin). This dealt with the issue of "reasonable alternatives" within the development of planning policies. Equally in the context of applying a planning policy, as here, a Local Planning Authority is entitled to consider the use to which the land would otherwise be put but for the proposed development. As Lord Bridge of Harwich put it in Westminster City Council v. British Waterways Board [1985] AC 676:

"In a contest between the planning merits of two competing uses, to justify refusal of permission for use B on the sole ground that use A ought to be preserved, it must, in my view, be necessary at least to show a balance of probability that, if permission is refused for use B, the land in dispute will be effectively put to use A".

29. In my judgment the officer's report dealt with the issue of the retention of the current permitted use of the site fairly and lawfully. There was no error in setting out the relevant policy considerations or their interpretation. Accordingly, the Claimant's second ground of claim also fails.
30. It follows that the Claimant's claim for judicial review fails for the reasons set out in this judgment.
31. I leave the parties to agree any consequential orders arising out of this judgment, to include the issue of costs, with permission to make application to me only if necessary.