QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of
CHERKLEY CAMPAIGN LIMITED
|- and -
|MOLE VALLEY DISTRICT COUNCIL
|- and -
|LONGSHOT CHERKLEY COURT LIMITED
James Findlay QC (instructed by Sharpe Pritchard) for the Defendant
Christopher Katkowski and Robert Walton (instructed by Berwin Leighton Paisner LLP) for the Interested Party
Hearing date: 6th , 7th & 10th June 2013
MR JUSTICE HADDON-CAVE:
Crown Copyright ©
"The planning system is created as an instrument of government, as a means of restricting private land use rights in the interests of the community as a whole." (Sir Malcolm Grant, Urban Planning Law, 1982 edition, p. 6).
Cherkley Court and Estate
Cherkley Court and Lord Beaverbrook
Longshot's planning application
"The use of Cherkley Court, and its existing associated buildings as a hotel comprising guest accommodation, health club, spa and cookery school. Provision of additional floorspace to accommodate further guest rooms, underground plant and leisure uses, including an outdoor pool. Provision of an 18 hole golf course, practice facilities, clubhouse and maintenance area (underground)…"
Summary of designations affecting the application site
(1) The whole application site lies within the Surrey Hills Area of Great Landscape Value ("AGLV"). This is a county-level designation which recognises its "high quality landscape" (Core Strategy, paragraph 6.4.5.).
(2) Part of the site is within the Surrey Hills Area of Outstanding Natural Beauty ("AONB"). This is a national designation which confers the "highest level of protection in relation to landscape and scenic beauty" (National Planning Policy Framework ("NPPF"), paragraph 115).
(3) The entire site is within the Metropolitan Green Belt.
(4) The site is adjacent to the Box Hill National Trust Estate.
(5) The site is adjacent to the Mole Gap to Reigate Escarpment Site of Special Scientific Interest ("SSSI"), a nationally important site. The SSSI is also a Special Area of Conservation ("SAC"), indicating European importance for nature conservation. There is an 800 metre buffer zone associated with the SAC which covers much of the southern half of the site.
(6) The site includes Cherkley Wood, which is a Site of Nature Conservation Importance ("SNCI"). This is a local designation. 40-Acre Field comprises chalk grassland which is a habitat identified as Biodiversity Action Plan Priority Habitat and is considered to meet the requirements for a designation as an SNCI. The application site falls within a Biodiversity Opportunity Area ("BOA").
(7) A significant part of the parkland within the site comprises Areas of High Archaeological Importance and includes designated archaeological sites.
(8) The site includes Grade II listed buildings and several curtilage-listed buildings. Cherkley Court is described as "a significant listed building within Mole Valley and forms an important part of the nation's cultural heritage".
(9) The site includes Scheduled Ancient Monuments.
Mole Valley Local Plan
12.70 There are seven established golf courses in the District concentrated principally around Dorking and Leatherhead. In the Newdigate area a new course has been opened in recent years and another permitted. More generally this part of Surrey is very well served with golf courses. According to the recognised standards of provision there is no overriding need to accommodate further golf courses in the District.
12.71 In considering proposals for new courses, the protection of the District's Green Belt and countryside will be of paramount importance. In this regard it will be important to ensure that a proposal is compatible with retaining and where possible enhancing the openness of the Great Belt and rural character of the countryside. Applicants proposing new courses will be required to demonstrate that there is a need for further facilities.
12.72 New courses are likely to have an impact on the District's landscape because of their extensive size, formal appearance, considerable earth works and new buildings. The Council will seek to ensure that proposals for golf courses do not reduce the distinctiveness and diversity of the District's landscape. The Council is particularly concerned about the effect on the special landscape qualities of the Surrey Hills Area of Outstanding Natural Beauty and the Area of Great Landscape Value and future golf course proposals will be directed away from these areas of high landscape quality.POLICY REC 12 - DEVELOPMENT OF GOLF COURSES[A] Proposals for new golf courses and extensions to existing courses will be considered against the following criteria:1. the impact of the course on the landscape, archaeological remains and historic gardens, sites which are important for nature conservation and identified in Policies ENV9, ENV10, ENV11, ENV12 and ENV13, and the extent to which the proposal makes a positive contribution to these interests;2. the extent of any built development and facilities and their impact on the character and appearance of the countryside;3. courses will not be permitted on Grade 1, Grade 2 or Grade 3a agricultural land;4. the course should have safe and convenient vehicular access to an appropriate classified road. Proposals generating levels of traffic that would prejudice highway safety or cause significant harm to the environmental character of country roads will not be permitted;5. the extent to which public rights of way are affected and whether any provision is proposed for new permissive rights of way;6. the provision of adequate car parking which should be discreetly located or screened so as not to have an adverse impact on the character and appearance on the countryside.[B] In considering proposals for new golf courses, the Council will require evidence that the proposed development is a sustainable project without the need for significant additional development in the future, such as hotels or conference facilities.[C] Proposals for new golf courses should be designed to respect the local landscape character. New golf courses in the Surrey Hills Area of Outstanding Natural Beauty and the Area of Great Landscape Value will only be permitted if they are consistent with the primary aim of conserving and enhancing the existing landscape.
12.73 In determining proposals for golf courses and ancillary development, the Council will have regard to the Surrey County Council's guidelines for the development of new golf facilities in Surrey. Account will also be taken of the existing and proposed provision of courses in the area.
The planning decision-making process
Planning Officer's Reports (OR1 and OR2) recommending refusal
Executive Summary to OR1
"The proposal is a substantial and complex application in a very sensitive location within land designated as Green Belt, partly Areas of Outstanding Natural Beauty, a Site of Nature Conservation Interest, a Special Area of Conservation buffer zone and an area of high archaeological potential. The site also falls within the Area of Great Landscape Value and includes Scheduled Ancient Monuments. The proposals involve work to a Grade II Listed Building and curtilage listed buildings, change of use of these buildings, extensions to these buildings, new build in the green belt, and the provision of an 18 hole of golf course on the open parkland."
"In relation to the latter, the following elements are not considered to be policy compliant:
- The new buildings proposed in the Green Belt
- The impact of the proposal on the existing landscape character
- The need for the proposed golf course
It is considered that these 3 elements are serious breaches of adopted policies in the Core Strategy, the Local Plan, The Surrey Hills Management Plan, and, national guidance."
"With regard to the non compliant elements of the proposal, significant weight must be given to inappropriate development in the Green Belt as stated in PPG2 regarding the harm caused. In relation to landscape issues, objection and concern has been raised by numerous statutory and non statutory bodies including Natural England, the Surrey Hills AONB Adviser, the Surrey Hills Board, The National Trust, the Campaign to Protect Rural England (Mole Valley Group), and, The County Landscape Officer. Part of the site is designated by the Govt as having the highest status of protection in relation to landscape and scenic beauty. This must be given significant weight too. Natural England is considering this year whether to extend the AONB status to cover the entire application site and beyond. This must be given weight. Linked to this is the fact that the need for a golf course in the AONB/AGLV has not been proven by the applicant. …"
Planning officers' recommendation
(1) First, the proposed golf course, including tees, greens, bunkers and fairways, in this highly exposed and sensitive landscape (i) would be "seriously detrimental" to the visual amenities of the locality, (ii) would fail "to respect or enhance" the landscape character of the AGLV and AONB and (iii) was contrary to the aims of PPG2, PPS7, Core Strategy Policies CS1 and CS13, 'saved' Mole Valley Local Plan Policies ENV4 and REC12 and policies LU2 and LU3 of the Surrey Hills Management Plan.
(2) Second, the site was located in land designated as AONB and AGLV and "no justification" had been provided as to "why the proposed golf course needs to be located in protected landscape". The proposal was therefore contrary to the aims of the NPPF, 'saved' policies REC11 and REC12 of the Local Plan and Core Strategy policy CS16.
(3) Third, the proposal involved new buildings in the Green Belt, including a partly underground indoor swimming pool, an underground spa and a partly underground maintenance facility. These buildings, together with the activity generated by the proposed uses, would represent "inappropriate development in the Green Belt, in conflict with the aims of PPG2". There were no "very special circumstances" advanced which clearly outweighed the harm caused by reason of inappropriateness and the level of activity generated. The partly-underground indoor swimming pool and underground spa were not considered acceptable extensions to the proposed hotel since 'saved' policy REC22 of the Mole Valley Plan only made allowance for extensions to existing hotels which would not prejudice the openness of the Green Belt or rural character of the countryside. These elements are also contrary to 'saved' Policy REC11 which prevents recreational development that is not incidental to outdoor recreation.
Committee meeting 4th April 2012 - rejected recommendation (9 votes to 8)
Committee meeting on 2nd May 2012 – fresh motion defeated (10 votes to 9)
Referral to the Secretary of State
Decision and Reasons – 21st September 2012
"[REASONS FOR GRANT OF PLANNING PERMISSION]:
 The development hereby granted consent has been assessed against Mole Valley Core Strategy policies CS12 and CS 13; Mole Valley Local Plan policies ENV22, ENV31, MOV2 and REC12, Surrey Hills Management Plan policies LU1, LU3 and RT 1 and the National Planning Policy framework (NPPF). In addition, certain aspects of the development were subject to an Environmental Statement. The applicants commenced a public participation programme in October 2010 which ran until October 2011 – the various stages of which are set out on p. 13 of the officer report to the 4th April 2012 Development Control Committee. Representations received from the public were summarised on pp. 38 to 49 of the report to the 4th April Committee; p. 1 of the Addendum to that Committee and pp. 1-4 of the Addendum to the 2nd May Development Control Committee.
 The Development Control Committee considered that the development did conform to the policies above and granted permission for the following reasons:
 The development was considered to accord with the principles of sustainable development as set out in the NPPF and the Council's Core Strategy 2009 and Mole Valley Local Plan 2000. Particular emphasis was placed on the degree to which the proposals supported the local economy, providing jobs for local people and accommodation and facilities for visitors to the District. The Committee considered these benefits were enhanced further by measures to convert the listed building of Cherkley Court sensitively, finding a long term viable use that would ensure the on-going maintenance of the house, the estate buildings, the formal gardens and the wider estate. The case for approving the development was furthered by design and management proposals that would allow the ecology of the estate to be managed and, in places, enhanced alongside the formal playing areas of the golf course, whilst respecting the landscape characteristics on the estate and the wider landscape. The development was considered overall to balance the needs of the economy with those of nature and landscape conservation, as required by Mole Valley Core Strategy policies CS12 and CS13, and the conservation of the historic environment.
 The Committee also considered that the development supported measures in Mole Valley Core Strategy CS12 and Surrey Hills Management Plan policy RT1 to support the provision of accommodation for visitors to the District. Included in this is the provision of opportunities for the public to continue to visit the house and gardens, including the creation of a new statutory Right of Way.
 The development was considered not to compromise significantly the Green Belt policies contained in the NPPF and the Council's Core Strategy by: re-using existing buildings, utilising floorspace granted under previous, extant permissions and locating additional floorspace underground. The design of the development in terms of siting, scale and detailing was considered to retain substantially the openness of the site sufficiently to overcome concerns set out in the officers' report, having regard to the other benefits that would be achieved.
 In coming to its decision and in judging the impact on the Area of Great Landscape Value and Area of Outstanding Natural Beauty, the Development Control Committee were mindful of the Environmental Statement undertaken by the applicant under the EIA Regulations, the Council's assessment of the EA, the details contained in the application, the concerns of officers set out in their report and the requirement under a legal agreement to undertake a Landscape and Ecology Management Plan for the Cherkley Estate. It was judged that the landscaping and mitigation measures contained in the application were sufficient to ensure that the overall landscape character would not be compromised, that protected species would be safeguarded and that the ecology of the estate could be enhanced through control mechanisms in the legal agreement; planning conditions and the Landscape and Ecology Management Plan, despite the presence of the golf course. It was considered that the design of the proposals met the terms of planning policies designed to protect the biodiversity of the estate and the character of the countryside, namely Core Strategy policy CS13, Local Plan policy ENV22 and REC12, as well as Surrey Hills Management Plan policies LU2 and LU3. It was noted that the development included suitable measures to protect and enhance the majority of open countryside of the estate alongside formal playing spaces, whilst introducing management of neglected woodland, retaining hedgerows, managing trees and including new planting that is appropriate to a chalk grassland location. There would also be suitable protection afforded during construction phase.
 The Committee was mindful that a management plan will be prepared to integrate all the management provisions, from construction through to the maturity of the golf course. Therefore, the development could meet commitments to safeguard and enhance the natural environment within the NPPF, Core Strategy policy CS13, Local Plan policy ENV22 and REC 12 and Surrey Hills Management Plan policies LU2 and LU3. The development was considered to provide an opportunity for stable long term management of the estate and investment to safeguard its ecology and landscape.
 The development was considered to provide opportunities to meet a need for recreation facilities in the countryside and the applicant had been able to demonstrate in the supporting documents, such as the 'Report on Viability of Golf at Cherkley' and the 'Hotel Viability Study', that they would be able to secure enough interest in the facilities to make it viable in the short and long term. Therefore, the terms of Mole Valley Local Plan policy REC12 and its supporting text were considered to have been met in that a need for the facilities had been demonstrated and the character of the countryside could be safeguarded even within and adjacent to the Area of Outstanding Natural Beauty. The Committee did, nevertheless, as a condition of its approval, require the provision of a bond to be provided to the Local Planning Authority and held for a period of 5 years, to be used to reinstate the land in the event that the golf course venture should fail.
 The Committee was satisfied that the arrangements for car parking and access to and from the site were adequate and that the surrounding roads network could cope with the traffic generated by the development, as required by Mole Valley Local Plan policy MOV2.
 The proposals also provided opportunities to encourage the provision of new works of art and craft, as set out in Local Plan policy ENV31.
 Having considered all of the material considerations and objection to the development and the officers' concerns as expressed in their reports, the Committee concluded that, when balancing all of the issues, the development would achieve sufficient economic benefits and contained adequate environmental safeguards, having regard also to the conditions set out in the decision notice and to the Section 106 Agreement, to outweigh any concerns."
(1) Ground 1: breach of Green Belt policy requirements;
(2) Ground 2: failure to demonstrate "need" for further golf facilities in breach of Policy REC 12;
(3) Ground 3: breach of policies on protected landscape;
(4) Ground 4: failure to give adequate reasons
(5) Ground 5: failure to have regard to the adequacy of water resources in breach of Policy ENV68;
(6) Ground 6: failure to have regard to impact on European Protected Species
(7) Ground 7: failure to consider the optimum viable use of Cherkley Court as a residential dwelling; and
(8) Ground 8: failure to take into account a 2010 Agreement regarding the 'Glass House Cottages'.
Permission for judicial review and interim injunction
General principles and legislative scheme
The legislative scheme for the planning decision-making
(1) When determining an application for planning permission, a local planning authority is required to have regard to two kinds of consideration, namely the development plan so far as is relevant, and other considerations that are "material" (section 70(2) of the Town and Country Planning Act 1990).
(2) Section 38(3) of the Planning and Compulsory Purchase Act 2004, as amended by the Local Democracy, Economic Development and Construction Act 2009, provides that for the purposes of any area other than Greater London the development plan is "the regional strategy for the region in which the area is situated" and "the development plan documents (taken as a whole) which have been adopted or approved in relation to that area".
(3) Part 5 of the 2009 Act contains provisions relating to the adoption of Regional Strategies. The statutory scheme for the adoption of "development plan documents" is provided in Part 2 of the 2004 Act. In some areas, by virtue of transitional provisions in the 2004 Act, old-style plans adopted under the now repealed provisions of Part II of the 1990 Act survive as part of the development plan (see further below). (Note now the effect of Chapter 6 of the Localism Act 2011).
Section 38(6) of the Planning and Compulsory Purchase Act
(4) In England (as elsewhere in the United Kingdom) the planning system is still "plan-led". In statutory as opposed to policy terms, the priority to be given to the development plan in development control decision-making is encapsulated in section 38(6) of the 2004 Act, which provides:
"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."
(5) Section 38(6) must be read together with section 70(2) of the 1990 Act. The effect of those two provisions is that the determination of an application for planning permission is to be made in accordance with the development plan, unless material considerations indicate otherwise.
(6) Although section 38(6) requires a local planning authority to recognise the priority to be given to the development plan, it leaves the assessment of the facts and the weighing of all material considerations with the decision-maker. It is for the decision-maker to assess the relative weight to be given to all material considerations, including the policies of the development plan (see City of Edinburgh Council v. The Secretary of State for Scotland  1 WLR 1447 (concerning an equivalent Scottish provision), especially Lord Hope at pp. 1449H-1450G and Lord Clyde at pp.1457H-1459G).
The distinction between materiality and weight
(7) The law has always distinguished between materiality and weight. The distinction is clear and essential. Materiality is a question of law for the court; weight is for the decision-maker in the exercise of its planning judgment. This was spelled out in the well-known passages of Lord Hoffmann in Tesco Stores Limited v. Secretary of State for the Environment  1 W.L.R 754 (at p. 780):
"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 has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all.
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."
(8) So long as it does not lapse into perversity, a local planning authority is entitled to give a material consideration whatever weight it considers to be appropriate. Under the heading "Little weight or no weight?" in Tesco Stores Lord Hoffmann observed (at p.784):
" If the planning authority ignores a material consideration because it has forgotten about it, or because it wrongly thinks that the law or departmental policy (as in Safeway Properties Ltd v. Secretary of State for the Environment  JPL 966) precludes it from taking it into account, then it has failed to have regard to a material consideration. But if the decision to give that consideration no weight is based on rational planning grounds, then the planning authority is entitled to ignore it."
Rationality – principles
"The threshold of irrationality for purposes of judicial review is a high one. This is because responsibility for making the relevant decision rests with another party and not with the court. It is not enough that [the court] might, if the responsibility for making the relevant decision rested with [it], make a decision different from the appointed decision-maker. To justify intervention by the court, the decision under challenge must fall outside the bounds of any decision open to a reasonable decision-maker."
Reasons – principles
(1) A local planning authority's obligation to give summary reasons when granting permission is not to be equated with the Secretary of State's obligation to give reasons in a decision letter when allowing or dismissing a planning appeal. By their very nature, a local planning authority's summary reasons for granting permission do not present a full account of the local planning authority's decision-making process (per Sullivan LJ R (Siraj) v. Kirklees Metropolitan Council  EWCA Civ 1286 at paragraph ).
(2) A fuller summary of the reasons for granting planning permission may well be necessary "where members have granted planning permission contrary to a planning officer's recommendation in order to allow members of the public to ascertain the lawfulness of the decision" (per Sullivan LJ R (Siraj) v. Kirklees Metropolitan Council (supra) paragraph ).
(3) The fundamental test is "whether an interested person could see why planning permission is granted and what conclusion was reached on the principle issues" (per Ouseley J in R (Midcounties Co-operative Ltd) v. Wyre Forest District Council  EWHC 964 (Admin) at paragraph ).
Tesco Stores Ltd v. Dundee City Council 
(1) A planning authority must proceed on a proper understanding of the development plan. It cannot have proper regard to the provisions of the development plan if it fails to understand them (per Lord Reed at paragraph ).
(2) The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. In this area of public administration as in others policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context (per Lord Reed at paragraph ).
(3) Provisions of development plans which are framed in language whose application to a given set of facts requires the exercise of judgment fall within the jurisdiction of the planning authorities and can only be challenged on the grounds of irrationality. Nevertheless, planning authorities do not live in the world of 'Humpty Dumpty': they cannot make the development plan mean whatever they like it to mean (per Lord Reed at paragraph ).
(4) A local planning authority was required to proceed on the basis of a proper interpretation of the relevant provisions of the development plan which was a matter of textural interpretation not of planning judgment (per Lord Reed at paragraph ).
"If there is a dispute about the meaning of the words included in a policy document which a planning authority is bound to take into account, it is of course for the court to determine as a matter of law what the words are capable of meaning. If the decision maker attaches a meaning to the words they are not properly capable of bearing, then it will have made an error of law, and it will have failed properly to understand the policy.…"
ANALYSIS OF GROUNDS OF CHALLENGE
GROUND 2: 'NEED'
Council's and Longshot's submissions
'SAVED' POLICY ISSUES
(1) First, the requirement to demonstrate "need" in the paragraph 12.71 of the Local Plan amounted to "policy" and not "reasoned justification" for policy and, accordingly, fell foul of paragraph 24 of Annex A of PPG12 and was, therefore, unlawful and of no effect;
(2) Second, in any event, the Secretary of State only had power under paragraph 1(3) of Schedule 8 the 2004 Act to direct that "policies" be saved, and since Paragraph 12.71 of the Local Plan was not in fact or in law "policy", it had not been, and was not capable of being, "saved" and it no longer existed in law.
(1) Longshot's challenge to lawfulness of Paragraph 12.71
Preclusive provisions in the 1990 Act
Adoption of Mole Valley Local Plan in October 2000
(2) Longshot's argument that paragraph 12.71 not 'saved'
What comprises a Local Plan in law?
"(6) A local plan shall also contain –
(a) a map illustrating each of the detailed policies; and
(b) such diagrams, illustrations or other descriptive or explanatory matter in respect of the policies as may be prescribed,
and may contain such descriptive or explanatory matter as the authority think appropriate."
(1) a "written statement" formulating the authorities detailed policies for development and use of land in their area (section 38(2) of the 1990 Act);
(2) a "proposals map" illustrating each of the detailed policies (section 36(6)(a) 1990 Act; article 6 of the Town and Country Planning 1999 Regulations);
(3) a "reasoned justification" prescribed by regulation 7 of the Town and Country Planning 1999 Regulations and "such diagrams, illustrations or other descriptive or explanatory matter" in respect of policies as may (otherwise) be prescribed (section 36(6)(b) 1990 Act); and
(4) "such descriptive or explanatory matter" as the authority think appropriate (section 36(6) 1990 Act).
Analysis of the Mole Valley Local Plan
"1.10 The Plan's policies are printed in bold type and boxed within a shaded background to distinguish them from the supporting text which provides a reasoned justification for each policy and indicates how it will be implemented by the Council. To interpret the policies fully, it is necessary to read the supporting text.
1.11 When considering proposals for development, the Council will have regard to all the relevant policies in the Plan."
REC12 – policy and supporting text
Paragraph 1 of Schedule 8 of the 2004 Act
What is saved?
Answers to argument
MEANING OF 'NEED'
Dictionary definition of "need"
General context - planning law
Specific context - REC12
Geographical component to "need"
Qualitative component to "need"
Does "need" equate to "demand/viability /want"?
Answer on meaning of "need"
Efficacy of "supporting text"
Could the Council majority rationally have concluded there was "need"?
Mole Valley Local Plan – paragraph 12.70
"More generally this part of Surrey is very well served with golf courses. According to the recognised standards of provision there is no overriding need to accommodate further golf courses in the District."
Planning officers advice – no proven need for additional golf facilities in Surrey
(1) There are more golf courses in Surrey in the 'Top 100' than any other county in the UK (http://www.top100golfcourses.co.uk). There are 115 golf clubs affiliated to the Surrey County Golf Union comprising 140 golf courses (http://www.surreygolf.org). Sunningdale is in Berkshire but is part of the Surrey County Golf Union. The 'Top 100' golf clubs affiliated to the Surrey County Golf Union include the following rated courses: Sunningdale (Old) (3rd), Sunningdale (New) (7th), Walton Heath (Old) (8th), Wentworth (West) (12th), St George's Hill (14th), Queenwood (26th), Walton Heath New (28th), Addington (30th), Worplesdon (33rd), Hankley Common (34th), Hindehead (68th), Wisley (73rd), Wentworth (Edinburgh) (81st), Coombe Hill (89th), Tandridge (100th) (http://www.top100golfcourses.co.uk).
(2) It is possible to find out how many golf courses there are within a radius of 10, 15, 20 and 50 miles of Cherkley Court (postcode KT22 8QX). As the crow flies: within 50 miles of Cherkley there are 627 golf courses; within 20 miles of Cherkley there are 192 golf courses; within 15 miles of Cherkley there are 118 golf courses; within 10 miles of Cherkley there are 49 golf courses (http://www.Golfshake.com).
(3) Of the 49 golf clubs within 10 miles of Cherkley, 12 are rated 4-star or better: Tyrrell's Wood is 4-star (and ½ mile next door to Cherkley); Walton Heath is 4-star (and 2 ¾ miles from Cherkley); Cuddington is 4.5-star (and 5 ½ miles from Cherkley); Wisley is 5-star (and 8 miles from Cherkley); St George's is 4.5-star (and 8 miles from Cherkley); Coombe Hill is 4.5-star (and 10 miles from Cherkley); and it should be noted that Queenwood is 5-star (and 12 miles from Cherkley) (http://www.Golfshake.com).
Longshot's answer – exclusive 5-star golf club
Planning officers rejected Longshot's construction
"Policy REC12 does not draw a distinction between different categories of golf provision. It was written to protect the countryside, particularly sensitive landscapes such as Cherkley, from proliferation of golf courses. The issue of need is therefore relevant whatever golf courses and market being targeted." (OR1, p. 86)
"Because the Cherkley estate lies within a nationally important protected landscape or immediately adjacent to it, questions of need are even more significant. The proposal as it stands does not provide sporting or recreational facilities that are locally in short supply. Instead they are providing for a very specific and exclusive market that is mobile and even international in character. Therefore it is reasonable to conclude that the golf course and its associated facilities could be provided in another location where the landscape is less sensitive and important. For these reasons the proposal fails the tests of Policy REC11, REC12 and Policy CS16."
" The development was considered to provide opportunities to meet a need for recreation facilities in the countryside and the applicant had been able to demonstrate in the supporting documents, such as the 'report on Viability of Golf at Cherkley' and the 'Hotel Viability Study', that they would be able to secure enough interest in the facilities to make it viable in the short and the long term. Therefore, the terms of Mole Valley Local plan policy REC12 and its supporting text were considered to have been met in that a need for the facilities had been demonstrated…"
Conclusion on 'need'
"The Council is particularly concerned about the effect on the special landscape qualities of the Surrey Hills Area of Outstanding Natural Beauty and the Area of Great Landscape Value and future golf course proposals will be directed away from these areas of high landscape quality."
"…[I]t is reasonable to conclude that the golf course and its associated facilities could be provided in another location where the landscape is less sensitive and important ."
Conclusion on 'directing away'
GROUND 3 – BREACH OF POLICIES ON PROTECTED LANDSCAPE
Submissions on landscape issues
(1) First, the Council majority failed properly to construe and apply: (i) the NPPF, paragraphs 115 and 116, and in particular the "exceptional circumstances" and "public interest" tests in paragraph 116 and, in the event that members considered those paragraphs were not engaged (contrary to the views of the planning officers), no adequate summary of reasons were given for this conclusion; (ii) the requirement that new golf courses be "directed away from the AGLV and AONB" as required by para.12.72; and (iii) the requirement of policy REC12 that new golf courses will only be permitted if they are "consistent with the primary aim of conserving and enhancing the existing landscape" in that their conclusion that "the landscaping and mitigation measures contained in the application were sufficient to ensure that the overall landscape character would not be compromised" is not capable of satisfying the requirement to "conserve and enhance the existing landscape". As such, the Council majority failed to have regard to those policies as material considerations and to determine the application in accordance with the development plan as required by section 70(2) of the 1990 Act and section 38(6) of the 2004 Act.
(2) Second, alternatively, if the majority of members did properly construe those development policies and the NPPF, there was no rational or discernable basis for their decision in that all the evidence pointed to a different conclusion.
(3) Third, in any event, the decision of the Council majority that those policies were met, given the information before them, was irrational in that the decision simply "does not add up" in the Sedley J sense.
(4) Fourth, the Council majority gave no adequate summary of their reasons for the decision in this respect as required by Article 31(1)(a) of the 2010 Order particularly given the range of information to the contrary and the high level of importance given to AONB and AGLV in planning policy.
Council's and Longshot's response on Ground 3
Landscape protecting policies - NPPF
"11. Conserving and enhancing the natural environment109. The planning system should contribute to and enhance the natural and local environment by:
- Protecting and enhancing valued landscapes…"115. Great weight should be given to conserving the landscape and scenic beauty in..[AONB], which have the highest status of protection in relation to landscape and scenic beauty. …116. Planning permission should be refused for major developments in these designated areas except in exceptional circumstances and where it can be demonstrated that they are in the national interest. Consideration of such application should include an assessment of:
- The need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy;
- The cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way; and
- Any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated."
(1) Local planning authorities must give "great weight" to conserving the landscape and scenic beauty in AONB etc.
(2) Local planning authorities should refuse planning permission for major developments in designated areas except in "exceptional circumstances" and where they are in the "national interest".
(3) Consideration of what amounts to "exceptional circumstances" and "national interest" will include assessment of (a) the "need" for the development, including any national considerations, and its impact upon the local economy; (b) the opportunity for developing elsewhere, or meeting the "need" in some other way; and (c) any detrimental effect and the extent to which that could be moderated.
Mole Valley Local Plan
"Proposals for new golf courses should be designed to respect the local landscape character. New golf courses in the Surrey Hills Area of Outstanding Natural Beauty and the Area of Great Landscape Value will only be permitted if they are consistent with the primary aim of conserving and enhancing the existing landscape."
"12.72 New courses are likely to have an impact on the District's landscape because of their extensive size, formal appearance, considerable earth works and new buildings. The Council will seek to ensure that proposals for golf courses do not reduce the distinctiveness and diversity of the District's landscape. The Council is particularly concerned about the effect on the special landscape qualities of the Surrey Hills Area of Outstanding Natural Beauty and the Area of Great Landscape Value and future golf course proposals will be directed away from these areas of high landscape quality."
Proposed golf course
Experts' unanimous view – harmful
"…because the proposal involves such a large stretch of vulnerable landscape of great beauty…The Board resolved to express to your Authority its serious concern that a golf course is proposed to be introduced into this part of the Surrey Hills AONB and AGLV as it would be very likely to undermine its natural beauty and reduce the extent of unspoilt countryside in an important part of the Surrey Hills".
"6.36 Given the rarity of this landscape pattern, its characteristic nature with reference to the wider Surrey Hills, and the inherent sensitivity of the AONB, it is considered that effects upon the AONB, where this type of panorama is available, would lead to effects which would be major. These effects would be adverse, long-term and permanent. …"
"6.43 Considering the high sensitivity of the AGLV in this location, and particularly the Northern Parkland and 40 acre field, the changes would result in a high magnitude of change at a local level, which would reduce to medium/ high within more distant locations where visibility of these parts of the landscape would be reduced. This would lead to effects of at least major/ moderate level. These effects would be adverse, long-term and permanent. …"
"7.3 The assessment finds that the change of use from grazed chalk downland to managed recreation land, notwithstanding the efforts proposed to reduce the development footprint, would result in changes to the defining characteristics of the landscape of such magnitude that the landscape character would be fundamentally, and probably irreversibly, altered."
"7.4 Such changes to the landscape character would realise significant effects upon both the Surrey Hills AONB and the Surrey AGLV. Whilst physical effects would be much greater upon the AGLV than the AONB, the contribution the development site makes to the appearance of the chalk downland plateaux within both the near and distant views is of key consideration. …"
Planning officers' advice on landscape issues
There are undoubtedly landscape benefits to be achieved from the proposed development and there is a commitment to manage the components of that landscape in appropriate ways. However, the price to be paid is the imposition of a golf course on over 40% of the open parkland, with all the artificial elements associated with this form of development such as greens, tees, bunkers and fairways. However well designed, in a highly exposed location such as this, conspicuous from public highways and rights of way, it is very difficult to disguise these features. In such circumstances the proposal would be contrary to a number of established planning policies and the landscape impacts must be given considerable weight when determining the application.
The applicant views the golf course as a means of saving a declining landscape, but under its previous management the visual qualities of the estate had improved. The quality of the Northern Parkland is underlined by its status as an AGLV and one independent landscape study suggests that it has characteristics that are the same as the adjacent AONB. The independent landscape assessment commissioned by the Council endorsed this view. This is a landscape of special quality, natural beauty and character that would not be enhanced and conserved by overlaying upon it the features of a golf course.
The impact on the AONB is disputed. The applicant argues that the visual impact on the AONB would be limited and the area of intensively managed turf within and immediately adjacent to the AONB would be confined 25% of the land. However, both Natural England and the AONB Planning Adviser disagree and they consider that adverse impact on the AONB can be caused by development on the Northern Parkland as well as changes to 40 Acre Field. The independent landscape assessment also raised concerns about the impact within and adjacent to the AONB and the wider landscape and views from other parts of the AONB. It also stated that there had been no indication that the design for the golf course within the AONB had been different from the design within the AGLV.
The policy basis for considering the application is explicit in stating that development proposals should respect or enhance the landscape character and there is considerable evidence to suggest that it does not. This view is supported by the independent landscape assessment and comments received from Natural England, the AONB Planning Advisor, the County's Landscape Adviser and the National Trust in particular. The conclusion is that the proposal would be harmful to the landscape character of the AGLV and AONB and is therefore contrary to PPS2, PPS7, Core Strategy Policies CS1 and CS13, 'saved' Mole Valley Local Plan Policies REC4 and REC12."
"The NPPF emphasizes the importance of protecting valued landscapes. Protection of such landscapes needs to be commensurate with their status and appropriate weight should be given to their importance. The NPPF is explicit in that planning permission should be refused for major developments in these designated areas except in exceptional circumstances and where it can be demonstrated they are in the public interest. In this case, it cannot be demonstrated that there are any exceptional circumstances for allowing the development proposal in such a valued landscape and there is little to suggest the proposal is in the public interest. The proposal is therefore considered to be contrary to the advice contained in the NPPF."
"Exceptional circumstances" and "public interest" tests
Planning officer's advice
"In this case, it cannot be demonstrated that there are any exceptional circumstances for allowing the development proposal in such a valued landscape and there is little to suggest the proposal is in the public interest." (see OR2 also cited above)
Reasons silent on 'exceptional circumstances'
Conclusion on 'exceptional circumstances'
"Conserving and enhancing the existing landscape"
Conclusion on landscape
GROUND 5 – WATER
"POLICY ENV68: Development will only be permitted where the Council, after consultation with the Environment Agency and the relevant water supply companies, considers that adequate water resources are available, or where their provision is not considered detrimental to existing abstractions, river flows, water quality, fisheries, amenity or nature conservation."
"The provision and development of water resources to ensure the supply of water to new development is becoming increasingly difficult in the Thames Region. The scale of development envisaged in the District should not pose a problem but there are some developments such as golf courses that can make substantial demands on water."
"Concerns have been raised about the impact of the proposals for water abstraction on the ecology of the area. The Environment Agency has provided advice to the applicant and, on the basis of that advice, proposes to obtain their water from a deep borehole into the Lower Greensand. The Agency has indicated that there are examples of other similar abstractions that take place from the Lower Greensand and that there are no other similar abstractions taking place in this part of the Lower Greensand. They do not consider that there will be direct environmental impacts as a result of water abstraction from the borehole. However, the applicant will need to provide the Agency with details of the water quantities they will wish to abstract and will need to apply for consent to drill and test. The Agency would place conditions on the pumping test. If this is successful, an abstraction license would be required which, if granted, would have conditions attached. The license would be reviewed after a period of 10-12 years and that review would take account of any know environmental impacts."
Conclusion on water
GROUND 1: GREEN BELT
NPPF – Protecting Green Belt Land
"9. Protecting Green Belt land
79. The Government attaches great importance to Green Belts. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence.
80. Green Belt serves five purposes:
- To assist in safeguarding the countryside from encroachment;
87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.
88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special circumstances' will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.
87. A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. …"
(1) Is "inappropriate development" proposed?
(2) Do "very special circumstances" exist?
(3) Do such circumstances "clearly outweigh" the potential harm caused by the inappropriateness of the development and any other harm?
Mole Valley Local Plan and Green Belt policy
Planning officers' advice in 0R1
(1) The first category comprised the extensions to existing buildings, Cherkley Court, Garden House and Garden House Cottage, the nearby detached plant enclosures, and the orangery link which the planning officers advised "will be small in scale" and "will not have an impact at openness".
(2) The second category comprised the Health Club extension and the new Glass House Cottages which would re-use the floorspace and volume of other buildings previously permitted (inter alia by a 2003 permission) and "the re-use was a sufficient very special circumstance to justify what is otherwise inappropriate development".
(3) The third category comprised the other buildings, including the partly underground swimming pool, the underground spa and the partially underground maintenance/ service hub buildings. The planning officers rejected the case advanced by Longshot, that the "very special circumstances" exception applied put forward on the basis these new buildings were wholly or partially underground and would not be disproportionate to the existing buildings. The planning officers advised as follows: (i) whilst the spa would be partially underground, "it would be of a considerable size and would generate a significant amount of activity"; (ii) the maintenance facility was also "not a small building" and "would have a wide vehicular access for service vehicles in the roof"; (iii) the spa and swimming pool (which would be marketed to and open to 275 members of the public) might be needed commercially to make the venture financially viable but (a) "commercial" requirements are not "planning" requirements, (b) these are uses which can be located in "built up" areas in the locality which do not impact on the Green Belt, and (c) REC11 presumes against recreation facilities in the Green Belt which are not incidental to outdoor recreation facilities".
"Despite the spa's position underground, it is considered that the activity associated with the spa and swimming pool in the Green Belt would be harmful to openness, especially in an area that is isolated and where people would have to rely on the private car rather than private transport to access the site. The new build elements are inappropriate development that is harmful to openness. It is considered that there are insufficient very special circumstances to justify those elements of new development in the Green Belt and as such they fail Green Belt policy tests in PPG2. The golf course maintenance facility and service hub building will have a dual use, and whilst accepting that the service hub element will help to minimise the movement of vehicles around the site, it is considered that this element of the proposal is not genuinely ancillary to the golf course and therefore fails the PPG2 policy test with regard to essential facilities.
"In addition, as Natural England may, in the future, consider including the whole site within the AONB and an independent assessment suggests that this land within the site is of AONB quality, some weight can be given to Policies LU2 and LU3 of the Surrey Hills Management Board. Part of these policy considerations relate to respecting the tranquility of the area. Clearly, the spa/health club and swimming pool will attract visitors and their cars to the site and this will be contrary to the Surrey Hills adopted policy".
Recommendation in OR1
" The development was considered not to compromise significantly the Green Belt policies contained in the NPPF and the Council's Core Strategy by: re-using existing buildings, utilising floorspace granted under previous, extant permissions and locating additional floorspace underground. The design of the development in terms of siting, scale and detailing was considered to retain substantially the openness of the site sufficiently to overcome concerns set out in the officers' report, having regard to the other benefits that would be achieved."
Meaning of "very special circumstances"
"Need" for golf facilities under Green Belt policy
Conclusion on Green Belt
GROUND 8 – GLASS HOUSE COTTAGES
"3. the new-build elements of the proposal including the formation of the golf course [etc.]… can be justified in terms of Very Special Circumstances as required by the provision of PPG2 'Green Belts' and REC22 regarding hotels in the countryside. "
Conclusion on 'Glass House Cottages
GROUND 4: INADEQUATE REASONS
19th hole – postscript