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
		07/11/2013

Mr Justice Sales :

Introduction

1. This judicial review application concerns a grassed area of about 1.4 hectares of open land owned by the Parochial Church Council of St George's Church, Headstone in central Harrow ("the Land"). The Land is largely surrounded by houses, the gardens of which back onto it. There is a vehicular entry point onto the Land from one of the surrounding roads and also a footpath entry point, but generally there is no visibility of the Land from those roads because it is screened by the houses that surround it. At present, the Land is not open to the public. It is private land. The entrances are gated and locked.
2. The Claimant ("Mr Gibson") seeks judicial review of outline planning permission granted by the Defendant ("the Council") for development of the Land to provide for residential development in the form of 7 one-bedroom flats, 8 two-bedroom flats, 4 three-bedroom houses and 8 four-bedroom houses, together with retention of 0.69 hectares of open space. The retained open space would be open to the public as a result of an agreement which the Interested Party ("the Parochial Council") is required to enter into as a condition of the grant of planning permission.
3. Mr Gibson has lived in one of the houses backing onto the Land since 1981. He is a long-standing supporter of the Headstone Estate Covenant Group, a local residents' organisation which is opposed to the development of the Land. Mr Gibson, the Headstone Estate Covenant Group and some other local residents are opposed to the loss of part of the open space at the Land. The Parochial Council is the body which owns the Land and which applied for planning permission. The Parochial Council proposes that the development should include affordable housing, and intends to use the proceeds from the sale of properties comprising the development to fund church activities and refurbishment of the existing church buildings.
4. Outline planning permission for the development was granted by the Council on 10 February 2012. The permission was granted in relation to the fourth application for planning permission for development of the Land which had been made by the Parochial Council. The second and third applications had been refused by the Council and had been taken on appeal. Each of the appeals was dismissed by an inspector appointed by the Secretary of State, but the inspectors made important findings and observations in their respective reports which the Council took into account when deciding to grant planning permission on the fourth application. The fourth application included significant modifications of the proposals put forward in relation to the second and third applications, in order to meet objections to those applications identified by the planning inspectors.
5. The claim was issued on 9 May 2012. There was a delay on the part of the court before the question of permission was addressed. Permission was granted by Collins J on the papers by a decision dated 7 June 2013.
6. The claim is brought on grounds which may be grouped under two heads. First, the Claimant contends that there has been a breach of the obligations on the Council in relation to consideration whether there was a need for preparation of an environmental impact assessment ("EIA") under the EU's Council Directive 85/337/EEC ("the Directive") and the domestic regulations which implement it, the Town and Country Planning (Environmental Assessment) Regulations 2011 ("the Regulations"). Secondly, the Claimant contends that the Council failed properly in its decision to deal with relevant policies which should have been taken into account and given effect by it.

The factual and policy background

7. The factual position in relation to the Land is helpfully set out in the decisions of the two planning inspectors, in passages which I set out below.
8. There is one policy in the Harrow Unitary Development Policy ("the UDP") which is relevant to be set out. Policy EP47 provides as follows:

"Open Space

EP47 The Council will protect and where appropriate enhance the Borough's open spaces, parks, playing fields and recreation grounds, regardless of ownership. Development, apart from small scale ancillary facilities needed to support or enhance the proper functioning of the open space, will not be permitted on open spaces identified on the proposals map and on other open spaces with recreational, nature conservation or amenity value or located in areas lacking such sites unless the site is surplus to requirements or suitable alternative provision is made available."

9. In addition, the London Plan, which forms part of the policy framework governing consideration of the applications in this case, has at all material times included provision regarding protection and preservation of open spaces. At the time of the decisions taken by the two planning inspectors in relation to the second and third applications, the relevant policy in the London Plan (in its 2008 version) was policy 3D.8, as follows:

"3D.8 Realising the value of open space and green infrastructure

The Mayor will work with strategic partners to protect, promote and improve access to London's network of open spaces, to realise the current and potential value of open space to communities and to protect the many benefits of open space, including those associated with health, sport and recreation, children's play, regeneration, the economy, culture, biodiversity and the environment.

Policies in DPDs should treat the open space network as an integrated system that provides a "green infrastructure" containing many uses and performing a wide range of functions, such as the East London Green Grid."

10. Before the Council's decision in February 2012 to grant planning permission, that policy was replaced by policy 7.18B in a revised version of the London Plan (2011 version), which provides as follows:

"POLICY 7.18

PROTECTING LOCAL OPEN SPACE AND ADDRESSING LOCAL DEFICIENCY

Strategic

A The Mayor supports the creation of new open space in London to ensure satisfactory levels of local provision to address areas of deficiency.

Planning decisions

B The loss of local protected open spaces must be resisted unless equivalent or better quality provision is made within the local catchment area. Replacement of one type of open space with another is unacceptable unless an up to date needs assessment shows that this would be appropriate. …"

11. As mentioned above, there have been four applications for planning permission to develop the Land to provide residential properties. These were as follows:

i) the Parochial Council made an application in 2006 for outline planning permission for 50 dwellings to be built on the Land. There were many objections from local residents to that application, which was refused by the Council on 19 April 2007;

ii) the Parochial Council then brought forward an application for outline planning permission in relation to a scheme involving 27 dwellings and retention of 0.69 hectares of open land. This proposed scheme was, as regards the physical extent and lay-out of the buildings, the same as that to which the current application relates. Again, there were local objections. The Council refused that application by a decision dated 21 November 2007. The Parochial Council appealed to an inspector appointed by the Secretary of State. That appeal was dismissed by a decision dated 27 October 2008 ("the first inspector's decision"), essentially on the grounds that there was an inadequate planning obligation on the Parochial Council to ensure that the open part of the site would be open to the public. However, subject to that objection, the inspector considered that on the fundamental merits of the case, planning permission could properly have been granted as being in the overall public interest, having regard to the affordable housing element in the scheme and the proposal for the open part of the site to be made accessible to the general public;

iii) the Parochial Council brought forward a further, modified application for planning permission for the same building scheme for 27 dwellings with retention of 0.69 hectares of open land. The Council refused that application on 7 October 2010. The Parochial Council again appealed. That appeal was considered by a second inspector appointed by the Secretary of State and dismissed by him in a decision dated 13 June 2011 ("the second inspector's decision"). The grounds for refusal of permission were again that there was an inadequate planning obligation to ensure that the open space on the site would be made available to the general public; but again the inspector made important observations indicating that in his view, subject to the issue of a sufficient planning obligation to make the proposed open area accessible to the general public, planning permission should be granted as being overall in the public interest;

iv) the Parochial Council brought forward a further application for outline planning permission, dated 17 August 2011. This is the application to which the present claim for judicial review relates. After negotiation with the Council's planning department, the application contained proposals for the Parochial Council to enter into an agreement with the Council pursuant to section 106 of the Town and Country Planning Act 1990, whereby control of the open space to be included in the development would be put in the Council's hands and the Parochial Council would provide funding to assist the Council to ensure that it was kept open for the public. In this way, the Parochial Council sought to meet the objection taken by both planning inspectors previously, regarding the extent and robustness of the planning obligation to make the open area accessible to the public. There remained substantial local objections from residents to the proposed scheme, which in physical extent and lay-out is the same as the scheme to which the second and third applications had related. There was also, as in relation to the previous applications, an objection from Sport England, which considered that a sports ground would be lost if the application were granted. An extensive report on the application was prepared by one of the Council's planning officers ("the officer's report"). The officer's report rehearsed in considerable detail what had happened in relation to the second and third applications and referred to the decisions of the inspectors. By a decision dated 10 February 2012, the Council's planning committee resolved to grant outline planning permission for the scheme, on the basis that they were satisfied that the planning obligation, which had been deficient in relation to the second and third applications for permission, had been fortified and made more robust and that the scheme as a whole, taken with that planning obligation, was now in a satisfactory form.

12. In the course of this history of applications for planning permission, in addition to objecting to the applications, a number of local residents brought a claim seeking to establish rights of common in relation to the Land and to have it registered as a village green. This claim went to a non-statutory public hearing before an inspector. The residents failed to establish that there had been community access to the Land as of right in the past. The inspector found that use of the Land which had previously been enjoyed by a tennis club and a cricket club had been by the consent of the Parochial Council as landowner, and not as a matter of public right. The claim in relation to common rights in relation to the Land was dismissed by a decision dated 6 June 2011.
13. The first inspector's decision contained the following helpful description of the Land, the history of its use and the main features of the application at paragraphs 6 et seq., as follows:

"6. The site is private land bought in 1923 by the appellants [the Parochial Council]. There is not and seems never to have been any right of unrestricted public access. An eastern footpath access from Pinner View, immediately north of the Church Hall, and the vehicular entrance from the cul-de-sac road named Churchfield Close, are both gated and locked. The appeal site is 1.4 ha in extent, roughly rectangular, and appears generally flat. The land is grass covered, and currently mown only a few times a year. There are a number of modest trees and areas of scrub close to or along its boundaries.

7. To the south, west and east the gardens of 2-storey semi-detached houses bound the site. Contiguous with the south-east boundary of the site, facing Pinner View, stand the Grade II listed Church Hall and the unlisted Vicarage. To the north lie the well-maintained hard tennis courts of the Headstone Lawn Tennis Club. A large single-storey scout headquarters building, erected in the 1960's, stands in the north-west corner of the site, and is in active use by 1^st Headstone Scouts.

8. A substantial strip of land at the south of the site, in area approximately one third of the whole appeal site, was formerly occupied by the grass and clay courts of a tennis club (St George's Church [Headstone] LTC). The appellants' unchallenged evidence is that four of the seven courts had been abandoned by the 1980's. Their lease from the appellants terminated at the end of 1999, and the members moved to the Headstone Lawn Tennis Club ground. The reason appears from written evidence to have been inability to fund improvements to the courts or facilities by either party. Little of the former northern boundary of this strip survives. The area occupied by the former grass courts is visually indistinguishable from the remainder of the grassland area, but I found that the surface of the old clay courts (the eastern portion of this southern strip) could still be made out on my site visit. A derelict and abandoned timber hut stands just to the north of this southern strip, adjoining its eastern boundary.

9. The outline scheme before me opted for layout and access to be determined in the decision, leaving scale, appearance and landscaping to be decided later. The scheme plans show a single line of detached residential buildings along the southern part of the site; a continuation of that line runs northwards, next to the western site boundary, to a point where the southernmost part of the scout HQ now stands. There would be a new access road to the site off Pinner View, built through the gap between the Church Hall and Vicarage. A new community facility building is shown just north of the new road, in the vicinity of the present abandoned timber hut.

10. Apart from the southern third of the site – the old tennis court area – the land was shown on the 2004 Unitary Development Plan Proposals Map as "Open Space". Land so designated includes public and open spaces of various kinds, including allotments and cemeteries. In its evidence, the Council was unable to produce any material, or cogent reasons, casting light on why this area had been designated "Open Space". I found it even more surprising that it was unable to produce any reason why the southern third of the site, also open in character, had been omitted from this designation, and had no other kind of allocation. However, these facts are significant, because the southern line of six detached residential buildings in the appeal scheme, as well as the southern part of the access road, appear to be located wholly outside the designated "Open Land". This leaves a minority of the scheme – three detached residential buildings and the northern part of the access road, together with the new facilities building – located within the "Open Land" designation. …

14. I find it significant that the Council produced a major Sports and Recreation Provision Survey in 2005, after the adoption of the UDP. At the Hearing, it was agreed that no mention at all was made of any part of the appeal site (the former tennis club's activities took place on land not designated as Open Land in the UDP). Thus, the Council seems to have made no discoverable analysis of the quality and usability of this land, before or after preparing the UDP.

15. There is evidence that cricket matches and practice have taken place on the northern two thirds of the site since about 1928. The Club in question was the Headstone St George's Cricket Club. It appears that until some time in the 1960's the playing area included land to the east, subsequently developed as houses facing Pinner View, by permission of that land's owner. There is an absence of firm evidence as to how active the Club was in its use of the appeal site, but in the appeal-related material in the case file, there is correspondence of August 2005 by solicitors acting for the appellants terminating the licence. In this, the clubhouse hut was described as "formerly used" and "derelict", and it is said that the Club is no longer maintaining the playing fields, mowing the grass or maintaining the cricket table and pitches. The correspondence says that the Cricket Club appears to have abandoned the premises and the use of the playing facilities. It appears that the Club had been playing elsewhere, and the appellants say no cricket … has been played since 2004. No member of the former Club appeared at the Hearing to give more information, but a letter of July 2007 to a local resident from a former Club official, Mr Wakefield says that a diminished and ageing membership, and the expense involved rule out a return.

16. It is obvious that the area of open ground used by the former Club was very small in area for adult cricket. Inquiry Plan Disclosure shows that the north-south distance of the field, from the northern boundary to the former tennis club area is around 80 metres. Though the east-west area is some 124 metres wide at its widest point, it is less than 90 metres in the vicinity of the large Scout HQ building. As was agreed by the main parties, the rules of cricket specify no minimum or maximum dimension for a field of play, but a diameter well in excess of 100 metres is normal. No doubt the area could, in theory, be used by children to play cricket at an unambitious level, but the provision of ancillary facilities, and the maintenance expenses, would be relevant factors. A note of July 2008 in the appeal correspondence to Cllr Stephenson, from the Captain of a club team playing at the nearby Harrow Recreation Ground member, expresses an interest in using the ground, but the real level of that interest or his knowledge of the appeal site is not at all clear, and no interested club appeared at the Hearing or submitted a firm or realistic intention or ambition to use the site.

17. I can only conclude that the size of the playing field here, irrespective of the lack of other desirable facilities for organised cricket, make this a facility of very low attractiveness for any amateur cricket club that wanted to play competitive matches with another club. Any ambitious hitting would result in a number of balls going into the gardens of the many houses adjoining the appeal site.

18. As to active sports use outside the cricket season, there is no disagreement between the Council and appellants that the ground can get very boggy outside the summer months. There is no detailed evidence as to the methods or cost needed to contain this problem, though the appellants hazarded a guess that it might cost around £25,000. I have no evidence that any organised team games such as football or hockey have ever been played on the site.

19. I find that this site has severe deficiencies for active sports use. In my opinion, neither the Council nor other parties opposed to the appeal scheme has shown that the local situation is one of material deficiency in respect of active outdoor activities.

20. National policy guidance is properly pointed out by Sport England in its representation letter. I note its contention that "the application site is currently within the definition of a sports/pitch field as defined within S.I.1817", and the quoting of the criteria in PPG17, para 10. My findings above lead me to conclude that the land is more or less surplus to requirements for organised competitive or team sports played on a formal playing surface. There is considerable local public provision at the Headstone Manor Recreation Ground, some 400 metres to the north-west, and at Harrow Recreation Ground, some 300 metres to the south-east. The local private facilities for formal sport are at aforementioned Headstone LTC, and the Old Lyonians Sports Ground, some 100 metres to the south.

21. Though it would be impossible to say that there is a real surplus of land for formal sport in the Borough of Greater London generally, I do not consider that the appeal site would be a valuable addition to the existing stock. Apart from matters of size and condition, the land is in the ownership of the appellants, and no other party has suggested it has the will or means to seek ownership of it from them. It is also very relevant to mention the index-linked £50,000 sporting contribution in the Unilateral Undertaking that would be triggered by a planning permission. This would be solely for use to improve sporting provision within 800 metres of the appeal site.

22. The appeal site is private church land that has always been used for church activities, by groups affiliated to the church or others by specific arrangement. I was told that the 1^st Headstone Scouts use the open land for outdoor activities and informal games. This seems to me the kind of use that should endure and might be extended further with the good will of the appellants. However, when I asked the appellants for some indication of the regime that might ensue if I allowed the appeal, it became apparent that there was no fully formulated thinking on such matters as: whether or how the 0.7 ha of open land would be enclosed; the degree or kind of public access that might [be] allowed; whether the land would have its drainage problems removed; and the kind of outdoor provision intended for scouts or other users of the many organisations who now lease space in the Church Hall, or might be accommodated in the new community facility building.

23. These omissions are important. Also, the representations made on behalf of the Scouts suggest that they have [not yet] been convincingly or formally assured that they would be accommodated satisfactorily in the new scheme. This is despite the text legend on the Indicative Masterplan drawing no. ccsg.h203, which indicates that the community building would be for them. Their lease expired on 31 March 2008, and they now occupy premises on 6 months rolling notice.

24. The Council's suggested condition No. 2 could ensure that the community hall would be completed before any residential unit was occupied. However, I consider that further hard thinking and decision-making by the appellants is needed on the matters I highlight in paragraph 22 above. Only then can a responsible decision-maker reasonably conclude whether a reduction in the area of this locally-valued open land is properly counter-balanced by new arrangements that maximise the use and potential benefits of the remainder for the foreseeable future. In this case, I firmly believe that more active use of a smaller area of open land than now exists would give greater local benefit than what now obtains on a largely unused larger area of private land; this might reasonably be considered to outweigh any technical contravention of policies EP20 and EP47 …

Overall Conclusions on the Main Issues

30. whether the loss of open and largely undeveloped land for this development would breach the intentions of policies in the development plan, and national policy guidance The proposals do not accord with UDP Policies EP20 or EP47 for reasons I set out in paragraphs 9 and 10. As I set out in paragraphs 24 and 27, I find no other breach of development plan policies.

31. if so, whether the proposals have specific planning merits, though inconsistent with policies in the development plan I have come to the conclusion that the actual value of the appeal site for active team sport, both the designated Open Space, and the unallocated southern third, is very low. As privately owned space to accommodate other kinds of outdoor activity, I consider that the existing open space has considerable value. Its use could endure and be intensified above the present low level, albeit on a smaller area, if the appeal scheme were implemented. The addition to the housing stock, particularly in terms of affordable housing, could be another planning benefit, for reasons I explain, as it would be mostly sited on unallocated land to the south, leaving a significant area of useable open space within the UDP's allocated area.

32. However, the appeal must fail, because I find the way in which the open land would be used has been insufficiently spelt out at the outline planning stage, for reasons I spell out in paragraphs 22-24 above. …"

14. As appears from the first inspector's decision, the inspector came to the conclusion that the Land did not represent an attractive sports ground of importance for provision for sport in the local area; it was not open to the public, and securing general public access to the smaller open space proposed to be made available by the scheme would be an improvement in respect of public amenity and use of the site; and the provision of affordable housing on the Land would be a further planning benefit. It was clear that the inspector was firmly of the view that the Parochial Council's proposal was one for which, in principle, planning permission could and should be given, provided that the issue of planning obligation was properly addressed. His decision was carefully reasoned. It should be noted that the inspector found that the proposal in the application did not accord with policy EP47 (set out above), but considered that that policy was outweighed by other material planning considerations.
15. The inspector who made the second inspector's decision came to much the same conclusions, as explained at paragraphs 8 et seq. of that decision:

"Main Issues

8. There are two. The first is the effect of the proposal on the provision of open space in terms of both quantity and quality. The second is whether any benefits from the proposal outweigh any harm from the proposal.

Reasons

Open space

9. Although this site is an open space, the final report of the 2011 London Borough of Harrow Open Space PPG17 study (the PPG17 study) does not take it into account because it currently has restricted access. That alone suggests and recognises that the site makes little contribution at present to the provision of open space in Harrow either in quantity or quality. Both the London Plan (table 3D.1) and the PPG 17 study (table 3.6) classify an open space of this size as a small open space. Neither has any expectation that a small open space should make any contribution to the provision of outdoor sports facilities.

10. Even when fully in use, the evidence supplied by third parties suggests that the contribution made to the provision of outdoor sports facilities was limited to a tennis club with latterly about 25-30 members, a cricket club with a similar number of members (according to a letter from Andy Wakeford, its captain) playing typically 22 home games per year and occasional use for school or Sunday school sports days. It appears not to have been used during winter because of drainage problems. Its value for other non-sporting uses is considered below.

11. The tennis club has joined forces with another club on an immediately adjacent site. The cricket club continues to play, with reduced membership, on other grounds. They, at least, have found suitable alternative provision. There is no evidence of any other effective, economically viable, demand for use of the ground for use by a sports club or regular user. Occasional use, for purposes such as a police-organised junior cricket tournament, continues.

12. The proposal involves a reduction in the area of open space, not its complete loss. The southern portion of the site was reserved for tennis. The portion used for cricket was L-shaped, about 120m in one dimension, about 80m in the other. What would remain would be more regularly shaped, approximately 80m square.

13. Sport England takes the view that a previous decision on a proposal for a similar development of this site (reference APP/M5450/A/08/2075518) was "quite wrong" in stating that the current site is insufficient in size to accommodate a cricket pitch. It also points out that the playing of junior cricket requires approximately 75% of the area of an adult cricket pitch and the site comfortably supports junior cricket.

14. There are no standards for the dimensions of a cricket outfield, so it is correct that no assertion of insufficiency of size can be proven by reference to a technical standard but visual inspection confirms that the conclusion in the previous appeal decision is one that most would share. Insofar as the shorter dimension of the existing ground is adequate for senior or junior cricket, the reduced size of the retained open space would continue to be adequate for junior cricket. Although I have no information of the size of pitches required for other sports, they are usually smaller than the requirements of cricket and so, in quantitative terms, the reduction in the size of the open space would have little effect on the potential of the site to offer pitches for organised sport, should there be any effective demand for them.

15. For purposes of analysis the PPG17 study divides the borough into five areas. The site lies in the central area. The study concludes that in quantitative terms there is an 18.83 hectare deficiency in land area for outdoor sports pitches in the central sub area. However, all boundaries create results which are artificial to a degree. The site is close to the boundary with the north-west area. This has a 29.17 hectare surplus in land area for outdoor sports pitches, more than outweighing the central area deficiency.

16. Examination of map 9.5 of the study indicates that the appeal site would lie within the catchment area of a number of these pitches. For this reason, the reduction proposed in the size of the open space would not give rise to any local deficiency of outdoor sports pitches and the retention of the part proposed for development is not required to make good any local deficiency. It follows that the assertion, which is accepted by both main parties, that the appeal site is essentially surplus to requirements for organised or competitive sport, is correct.

17. As noted above, the value of the site for non-sporting uses has also to be considered. This includes occasional use by scouts; and casual use for walking and informal play.

18. The London Plan (table 3D.1) and the PPG17 study (table 3.6) expect small open spaces to provide gardens, sitting-out areas, children's play spaces or other areas of a specialist nature. They may contain play equipment and/or a Multi Use Games Area. They should have a good provision of basic amenities including entrance signs, seating and litter bins.

19. At present the site has none of these. It is not open for casual use. It has no road frontage and so does not contribute to the visual amenity of any public area. At present, the benefit of its visual amenity is limited to the occupants of the 27 or so houses which back on to it. Nine of these would continue to abut the retained open space proposed.

20. In the past, when more generally used for sporting activities, casual access would have been available but only to those in the know, because the site has no entrance signs and is generally hidden from public view. Its value for non-sporting use is therefore minimal. It does not function as a small open space in the terms of the London Plan or of the Harrow PPGI7 study. Both parties accept that there is a local deficiency of small open spaces.

21. In contrast to the previous appeal proposal, the current scheme seeks to make positive proposals for the retained open space, through a Unilateral Undertaking. If this could be relied upon, the proposal would drain and reseed the retained open space. It would be provided with seating and litter bins. It would have a road frontage and so be visible to the general public. It would be made open to them. It would provide a visual amenity for public visitors, for the residents of the nine houses which would continue to back on to it and also to those of the 27 new dwellings proposed as part of the development.

22. Its reduced size would still fall within the London Plan and PPG17 study definitions of small open space. Although not providing equipped play areas, if the Unilateral Undertaking could be relied upon the proposal would make qualitatively improved, and therefore suitable alternative provision for non-sporting activities. It would function as a small open space and so satisfy the local deficiency. Paragraph 12 of the government's Planning Policy Guidance 17: Planning for open space, sport and recreation advises that development of open space, sports or recreational facilities may provide an opportunity for local authorities to remedy deficiencies in provision. The proposal would comply with this advice.

23. For these reasons I concur with the view expressed in the previous appeal decision that the land is more or less surplus to requirements for organised competitive or team sports played on a formal playing surface. Those that formerly used it have made suitable alternative arrangements. In its present state, it has minimal value for non-sporting use. Its value as visual amenity is limited. There would be little or no harm resulting from its reduction in size.

24. Part of the site is designated as open space in the UDP. Part is not. Policy EP47 of the Harrow Unitary Development Plan 2004 (the UDP) would not normally permit development on open space, either designated or otherwise of value. It makes an exception where the site is surplus to requirements or where suitable alternative provision is made available. In contrast to the previous appeal proposal, that is now the case here. The proposal would therefore comply with UDP policy EP47.

25. London Plan policy 3D.8 promises, amongst other matters, that the Mayor will work with partners to protect open space but it does not place an absolute interdict on their development. It also promises to work to promote and improve access to open spaces and to realise their potential value. If the Unilateral Undertaking could be relied upon, this proposal would do that and so would comply with the policy.

26. The Council has indicated that it would not accept a transfer of the retained open space because of the existence of a covenant providing that it shall not be used as a place of public meeting or entertainment other than those connected with St George's Church. It feels that this covenant, if enforced, would limit the value of the use of the land as public open space. It seeks an indemnity against the possibility of the covenant being enforced. The Unilateral Undertaking does not provide such an indemnity.

27. If the Council did not accept a transfer of the retained open space, then the alternative provisions of the Unilateral Undertaking would come into effect. These would require the owners, or a management company established for the purpose, to make the retained open space available to the public sector for open space purposes.

28. Unfortunately, the term "open space purposes" is defined in a self-referential way. It is defined as meaning the use of the open space by members of the public during daylight hours. It does not make clear what use of the open space by the public is envisaged. The value of the open space and the use to which it might be put is a matter of public controversy, explored during the Inquiry. It is at the heart of the acceptability of this proposal. Although discussion during the Inquiry made it clear that the proposed use would be for a small open space for the purposes listed in table 3D.1 of the London Plan and table 3.6 of the PPG17 study, the omission of that clarification from the definition in the Undertaking makes it defective.

29. Provisions of the Undertaking allow the Council to comment on the Memorandum and Articles of Association of the management company and on the arrangements the owners or management company might propose for the Open Space Scheme and Open Space Maintenance Scheme. Quite rightly, these do not oblige the Council to make any observations but they would give insufficient force to the Council's observations, should it choose to make any.

30. For these reasons (i) the omission of an indemnity for the earlier covenant, (ii) the inadequate definition of open space purposes and (iii) the lack of force allowed for the Council's observations on the alternative arrangements, the Unilateral Undertaking cannot be relied upon to provide what the appellant intends for the retained open space. I therefore conclude that the proposal would fail to comply with London Plan policy 3D.8, seeking to realise the potential value of open spaces.

Benefits

31. The twenty-seven dwellings proposed are not needed for Harrow to meet its housing targets nor is permission for development of this land required to maintain a five year supply of housing land. Although London Plan policy 3A.2 requires Housing targets to be exceeded and so the provision of any housing development is of some benefit, Harrow is already comfortably exceeding its targets and so the benefit of this proposal is limited.

32. Harrow London Borough has an unusually small proportion of social housing. Its latest Annual Monitoring Report confirms that it is achieving 31% of affordable housing in completions against a target of 50%. Despite the Council's assertion that the affordable housing need of Harrow will be met over the plan period, it did not dispute the evidence to the contrary quoted by the appellants from its own publications and website, nor did it provide evidence to support its own assertion. It follows that the benefit of the affordable housing proposed may be regarded as substantial.

33. The effects of the proposal in terms of open space provision have already been discussed. If the Unilateral Undertaking could be relied upon, the balance of advantage would be positive, in allowing the release of a part of an open space used as playing fields surplus to requirements but developing the remainder as a small open space of which there is a deficiency. In the words of the previous appeal decision; more active use of a smaller area of open space than now exists would give greater benefit than what now obtains on a largely unused larger area. Nevertheless, beneficial though that would be, the proposal would not provide any equipped play area, so the benefits should only be counted as moderate. As this provision of the Unilateral Undertaking cannot be relied upon, they cannot be counted at all. …

Conclusions, conditions and other matters

36. The proposal would comprise development on greenfield land, contrary to policy EP20. It would lead to a reduction in open space. Although it would comply with the exceptions set out in policy EP47 the failings of the Unilateral Undertaking mean that the proposal would fail to make reliable provision for more active use of the remaining space in a way which would accord with the open space hierarchy of the London Plan and the Harrow PPG17 study.

37. There would be some limited benefit in contributing further to surpass Harrow's housing targets and a substantial benefit from the provision of affordable housing. …"

16. This again was a carefully reasoned decision. By no means could the views the inspector came to on the planning merits be regarded as irrational. On the contrary, they had considerable force. It should be noted that, unlike the first inspector, this inspector thought that the Parochial Council's proposals would – if accompanied by a sufficient planning obligation – comply with policy EP47, on the footing that the proposals would fall within the exceptions provided for in the policy itself. However, in context, this was a minor difference of emphasis between the two inspectors' decisions. The substance of their reasoning on the planning merits was the same.
17. The close alignment of the views of the first inspector and of the second inspector on the planning merits was emphasised by a ruling given by the second inspector on the question of the costs of the appeal, which he awarded to the Parochial Council, even though it had lost the appeal. His reasons included the following:

"16. The previous appeal inspector rejected the previous, highly similar scheme. Whilst recognising that the proposals breached two local plan policies, he also made it clear that the benefits of the scheme might reasonably be considered to outweigh any contravention of those policies if the appellants devoted further hard thinking and decision making to the regime for the use of the open space which might ensue if the appeal were allowed. He thus gave clear indications of the scheme's acceptability. …

18. A Unilateral Undertaking represents the appellant's response to the Inspector's requirement for further hard thinking and decisions about the regime proposed for the use of the open space. The Council's rejection of the Unilateral Undertaking is based on legal submissions. Other than assertions that the alternative provision proposed is "not suitable" the evidence put forward by the Council at the Inquiry does not address the substance of the proposals for the use of the open space.

19. It simply rehearses the policy arguments known to the previous inspector. It flatly contradicts the judgement of the previous inspector that the benefits of the scheme might reasonably be considered to outweigh any contravention of UDP policy EP47 without adducing any new evidence to justify such a contrary view. It questions the balanced view reached by the previous inspector by reference only to four bullet points covering matters which he explicitly took into account. It adds no new evidence to justify such disagreement. That is unreasonable and contrary to the fourth bullet point of paragraph B29 of the Costs Circular. …"

18. In relation to the third application for planning permission, the Council considered whether the Parochial Council's proposals were of a scale or character such as required an EIA to be produced. The Council concluded that no EIA was needed. This decision was set out in a screening opinion dated 15 July 2010 ("the screening opinion").
19. The screening opinion was produced using a standard form layout which followed the considerations set out in Schedule 3 to the Regulations. It included the following:

"B – Consideration of selection criteria in Schedule 3

B1. Characteristics of the development

The proposal seeks outline planning permission for the erection of 7 x 1 bed flats, 8 x 2 bed flats, 4 x 3 bed houses, 8 x 4 bed houses on an area of open space associated with St Georges Church.

B2. Location of development

The application site is approximately 1.4 ha in size, roughly rectangular and is generally flat. There are a number of trees and shrubs close to or along the boundaries. The rear gardens of two storey semi-detached houses bound the south, west and east of the application site. The grade II listed Church Hall and the unlisted vicarage bound the south-east of the site and to the north lie the well-maintained hard tennis courts of the Headstone Lawn Tennis Club.

B3. Characteristics of potential impacts

The proposed development is not of a scale and size that it will be of more than local importance (it will not put significant pressure on the highway network). This is further recognised by the fact it does not meet the thresholds to require to be referred to the GLA. The application site is not located within a nationally designated or locally vulnerable or environmentally sensitive location. (I.e. the site is not within a World Heritage Site or an SSSI) and the development will not have unusually complex or potentially hazardous environmental effects given the existing land is not contaminated and the fact the proposal is for residential development in a predominantly residential area. It is therefore not considered that this proposal will form EIA development. …

B5. Is the proposal EIA Development? No"

20. In relation to the fourth application, no further consideration was given to the need for an EIA assessment and no further screening assessment was carried out. The Council omitted to place the existing screening opinion on Part 1 of the register maintained by it in relation to planning applications.
21. I accept the submission of the Council that the omission to carry out a further screening assessment did not involve any breach of duty under the Regulations, in particular under Regulation 7, or under the Directive, in particular under Article 4(2). Regulation 7, read with Regulation 5, provides that an EIA screening assessment should be carried out in order to determine whether an EIA should be required in relation to a particular development "Where it appears to the relevant planning authority that - … (b) the development in question has not been the subject of a screening opinion or a screening direction …". Article 4(2) provides that for projects of a class which includes the proposed development "the Member State shall determine … through case-by-case examination … whether the project shall be made subject to [an EIA]". Article 1(2) of the Directive defines "project" as including "the execution of construction works …".
22. In this case, although the fourth application for planning permission was new, it was for permission in relation to a development which in its physical dimensions, characteristics and impact on the environment was identical to that for which permission had been sought by the third application. In the words of Regulation 7, "the development in question" was the same and that development had been the subject of a screening opinion, which had concluded that no EIA was required. Similarly, for the purposes of the Directive, "the project" in question was the same, and had been the subject of proper assessment for EIA purposes. Therefore, as a matter of substance, there was no obligation on the Council to carry out a further screening assessment.
23. However, Regulation 23(1) provides that "Where particulars of a planning application or of a subsequent application are placed on Part 1 of the register, the relevant planning authority shall take steps to secure that there is also placed on that Part a copy of any relevant – (a) screening opinion …". This is the provision of domestic law which implements the obligation on a Member State under Article 4(4) of the Directive, to "ensure that the determination made by the competent authorities under paragraph 2 is made available to the public."
24. The Council accepts that although the development to which the third and fourth applications related was the same, it had an obligation to place the screening opinion in relation to the third application on the register in relation to the fourth application, where it could be inspected by any member of the public interested in the fourth application. The Council also accepts that, by an oversight, it breached this obligation, in that it failed to place the screening opinion on the register in relation to the fourth application. Under the Claimant's first head of claim, the question arises what the consequence of this breach of obligation should be.
25. In relation to the fourth application for planning permission, the lengthy officer's report recommended that permission be granted, emphasising the improved planning obligation now being offered by the Parochial Council and the views expressed by the inspectors in the first inspector's decision and the second inspector's decision. Miss Wigley, for the Claimant, was critical of passages in the report, so it is relevant to set out the following material parts of the report.
26. The officer's recommendation was for the grant of planning permission, provided a satisfactory section 106 agreement was entered into (as in due course it was), as follows:

"RECOMMENDATION A:

… The Section 106 Agreement Heads of Terms would cover the following matters:

1. The Open Space Scheme: Before the occupation of the first dwelling details of an open space scheme shall be submitted to and approved in writing by the Local Planning Authority. The open space scheme shall comprise a scheme detailing a specification of all physical works required to enable the use of the site by the Council as public open space and include a phasing plan for the laying out of the open space scheme. The open space shall be laid out in accordance with the approved physical works and approved phasing plan "Open Space Scheme".

2. Transfer of Open Space: The open space shall be transferred to the ownership of the Council following the completion of the approved "open space scheme" …

4. Long Term Maintenance of Open Space: A contribution of £102,505 shall be paid to the Council for the maintenance of the open space for a period of 10 years on the completion of the transfer of the land to the Council …

If members of the planning committee are minded to approve this planning application it will need to be referred to the Department for Communities and Local Government as the proposal forms a departure from the adopted development plan policy

REASON

The decision to GRANT planning permission has been taken having regard to Government guidance contained within PPS1, PPS3, PPS9, PPS5, PPG17 and PPG13 the policies and proposals in The London Plan 2011 and the saved policies of the Harrow Unitary Development Plan 2004, listed below, and all relevant material considerations including any comments received in response to publicity and consultation. This application is undoubtedly controversial and has resulted in considerable unease amongst some local residents. The proposals, in promoting development of part of an area identified as open space in the UDP, also delivers UDP policy objectives in relation to affordable housing and secures through a proposed S106, for the future, public ownership and access to an area of private land.

Both previous appeal inspectors have concluded that the loss of part of the open space, whilst in conflict with policy EP47 of the UDP and against Sport England's advice, is outweighed by the community benefits of the open space being accessible for all in pursuit of policy 7.18B of the London Plan, and by the new affordable housing proposed as part of the development. The layout of the development and its impacts upon residential amenity is unchanged from the most recent appeal and is acceptable, having regard to highway and community safety. The development will not result in an increased flood risk.

The previous appeals failed because of the adequacy of the s. 106 agreement to secure the long term use of the open space by the public. The applicants have, with this application, revised their position on this matter and now propose to underwrite the transfer of the land to the Council against risks arising from the covenant on the land.

Subject to the S106 agreement being completed and the appended planning conditions, the application is considered to be acceptable having regard to all relevant development plan policy considerations. Despite the potential for change in the policy landscape at national and local level over the next 12 months, there are considered to be no other material planning considerations which would serve to alter the balance of merits and approval is accordingly recommended."

27. The importance of the section 106 agreement to meet objections to the scheme based on policy EP47 was emphasised by Recommendation B in the report, which was to refuse the application for planning permission if no section 106 agreement was forthcoming.
28. The officer's report included the following discussion of the issue of loss of open space and sports facilities:

"Loss of Open Space and Sports Facilities …

The Planning Inspector [in the first inspector's decision] acknowledged that the loss of the section of open space for housing was in conflict with policy EP47 of the Harrow UDP 2004 …

In [the second inspector's decision], the Planning Inspector revisited the issue of the open space in terms of its quantity and quality in regard to definitions set out in the PPG17 study and policy 3D.8 of the now superseded London Plan. …

The most recent appeal decision also acknowledged that saved policy EP47 would not normally permit development on open space, either designated or not. However, policy EP47 does make an exception where the site is surplus to requirement or where suitable alternative provision is made available. In this case, the Planning Inspector considered that there was alternative provision and as such concurred that the proposal could comply with saved policy EP47. …

[reference was then made to the latest letter of objection from Sport England, dated 14 October 2011]

… Sport England cite the PPG 17 Study acknowledgement of an increasing demand for junior sports pitches, particularly cricket and football, and paragraph 15 of PPG 17 itself (which also provides exceptions for playing field development). It is worth of note here that these comments in the PPG 17 Study come under the general heading 'Participation in Outdoor Sports' and are based on national research rather than anything locally specific. Nevertheless, the last Planning Inspector's decision letter (paragraph 14) concludes that the retained open space would be sufficient for junior cricket, again helping to open up this potential to the community at large.

Since the most recent appeal decision The London Plan 2011 (to replace the 2008 version) has been adopted. Policy 7.18B would be the most relevant policy in terms of protecting open space and addressing local deficiency. This policy acknowledges that the loss of protected open spaces should be resisted unless equivalent or better quality provision is made within the local catchments area. It goes on to state that replacement of one type of open space with another is unacceptable unless an up to date needs assessment shows that this would be appropriate. …"

29. The conclusion of the officer's report was as follows:

"CONCLUSION

This application is undoubtedly controversial and has resulted in considerable unease amongst some local residents. The proposals, in promoting development of part of an area identified as open space in the UDP, also delivers UDP policy objectives in relation to affordable housing and secures through a proposed S106, for the future, public ownership and access to an area of private land.

Both previous appeal inspectors have concluded that the loss of part of the open space, whilst in conflict with policy EP47 of the UDP and against Sport England's advice, is outweighed by the community benefits of the open space being accessible for all in pursuit of policy 7.18B of the London Plan, and by the new affordable housing proposed as part of the development. The layout of the development and its impacts upon residential amenity is unchanged from the most recent appeal and is acceptable, having regard to highway and community safety. The development will not result in an increased flood risk. …"

30. The officer's report also contained proposed text for the Council to adopt if it accepted the recommendation to grant planning permission for the development, to be inserted in the "Informative" section of the formal grant of permission, as follows:

"The decision to GRANT planning permission has been taken having regard to Government guidance contained within PPS1, PPS3, PPS9, PPS5, PPG17 and PPG13, the policies and proposals in the London Plan 2011 and the saved policies of the Harrow Unitary Development Plan 2004, listed below, and all relevant material considerations including any comments received in response to publicity and consultation. The loss of the open space whilst in conflict with policy EP47 of the UDP will be outweighed by the community benefits of the open space being accessible for all, the improved layout of the open space and the new affordable housing proposed as part of the development. The layout of the development subject to the planning consideration and s.106 agreement is acceptable and will not be to the detriment of highway safety. The development will not result in an increased flood risk and will reduce the opportunity for crime through natural surveillance of the open space. …. [A number of specific policies were then set out, including policy 7.18B of the London Plan and policy EP47 of the UDP]".

31. The Council, by its planning committee, decided to grant planning permission by a decision dated 10 February 2012. The decision included the text of the "Informative" section which had been proposed in the officer's report.

The Grounds of Challenge

(1) Failure to comply with the Directive and Regulations: EIA

(i) Inadequacy of the screening opinion

32. Although the screening opinion dates from 2010, Mr Gibson seeks to challenge it in these proceedings. He says that it was an inadequate screening assessment for the purposes of the Directive and Regulations.
33. Mr Gibson's claim was brought in time to challenge the grant of planning permission on 10 February 2012. I am satisfied that, even though the screening opinion was produced much earlier and was itself a decision capable of being challenged by objectors to the development at the time it was produced, it is open to Mr Gibson to challenge the adequacy and lawfulness of the screening opinion in these proceedings. In my view, this case falls within the guidance given by the Court of Appeal and its decision in R (Catt) v Brighton and Hove City Council [2007] EWCA Civ 298, at [45]-[49]. The operative planning decision which has immediate impact upon Mr Gibson is the grant of planning permission, and I consider that it is just and fair that he should have the opportunity to challenge the basis for and lawfulness of that decision, including by questioning the screening opinion on which it was implicitly based. A local resident who objects to a proposed development which might affect him ought not to be required to engage in the expense and effort involved in launching legal proceedings to challenge an EIA screening assessment which might ultimately have no material impact upon him (if planning permission is refused, as it was here in relation to the third application), on pain of losing the opportunity to challenge such an assessment should the need to do so later arise. Rather, a local resident will usually be entitled to wait to see if planning permission is granted and will then be allowed to bring forward all the relevant grounds of challenge available to him, including in relation to any EIA screening assessment, to question the lawfulness of that grant of permission.
34. However, on the substantive merits, I find that Mr Gibson's challenge to the lawfulness of the screening opinion cannot be sustained.
35. The parties were agreed that the relevant standards to be met in producing a screening assessment for EIA purposes are those explained in R (Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157 at [11] and [20]-[21]. A screening opinion need not be elaborate, but must demonstrate that the issues have been understood and considered, based on information which is sufficient and accurate.
36. Although Mr Gibson's objections to the screening opinion as pleaded in his claim were somewhat wider, Miss Wigley's submission on this part of the case was confined to a complaint that the screening opinion did not properly address the issue of the loss of open space and its impact on the character of the area. (Miss Wigley was right not to attempt to develop any of the wider grounds of complaint – they were plainly wholly without merit).
37. I do not accept Miss Wigley's submission. I put to one side the question whether loss of amenity in terms of open space in an urban environment constitutes a significant detrimental environmental impact in itself for the purposes of the Directive and the Regulations: I have some doubt about this, but heard little argument on it and it is unnecessary to form a final view. On the substance of the matter, the screening opinion referred to the nature of the development and made it clear in terms that the development was to be by way of building a significant number of homes on open space located in an urban and predominantly residential area. This was, in my judgment, sufficient and adequate to show that this aspect of the development had been properly taken into account for the purposes of the EIA screening assessment.

(ii) Failure to place the screening opinion on the register in relation to the fourth application

38. The Council admits that it failed to comply with its obligation under regulation 23, which implements the obligation set out in Article 4(4) of the Directive. However, it submits that the court should refuse relief, in the exercise of its discretion.
39. Where there has been no significant prejudice caused to a claimant by breach of the Directive and the associated Regulations, the Court retains a discretion not to quash the relevant decision: Walton v The Scottish Ministers [2012] UKSC 44, [121]-[140] per Lord Carnwath JSC and [155]-[156] per Lord Hope DPSC. Although that case was concerned not with the EIA Directive but the Strategic Environmental Assessment Directive, and was concerned with a particular statutory procedure to challenge the validity of particular schemes and orders under paragraph 2 of Schedule 2 to the Roads (Scotland) Act 1984 (which is similar to section 288 of the Town and Country Planning Act 1990), the comments by the Justices regarding the discretion of the court to refuse to quash a relevant planning decision where there has been a breach of a Directive are in my view applicable by analogy. It is open to the court to weigh prejudice to public or private interests if a decision is set aside against the prejudice suffered by the public and the person complaining of the breach of the Regulations and the Directive: see, in particular, Lord Carnwath at [131] and Lord Hope at [155]-[156].
40. Adopting that approach, I am satisfied that it is correct to refuse the relief sought by Mr Gibson, in the form of an order to quash the planning permission granted. Mr Gibson has suffered no detriment at all arising from breach of the obligation in Regulation 23 and Article 4(4). It is not remotely plausible to suggest that if the screening opinion had been placed on the register in relation to the fourth application the debate about and consideration of the development proposal would have been affected in any material way. As I have noted above, there was no breach by the Council of its substantive obligation to ensure that an EIA screening assessment of the development was carried out: that was properly done and the assessment carried out was lawful. On the other hand, the development has been identified to be in the public interest, in that it will expand public access to an open space and increase the supply of affordable homes. It is also in the interests of the Parochial Council that it should proceed, and it is relevant to observe that the Parochial Council bears no responsibility for the breach of the Regulations which has occurred. The balance of interests in this case points strongly to the refusal of the relief sought.

(2) Failure to have proper regard to relevant policies

41. The London Plan 2011 and the Council's UDP formed part of the "development plan" for the Council's area. Section 38(6) of the Planning and Compulsory Purchase Act 2004 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."

42. Section 70(2) of the Town and Country Planning Act 1990 requires a local planning authority dealing with an application for planning permission to "have regard to - (a) the provisions of the development plan, so far as material to the application … and (c) any other material considerations."

(ii) Failure to have proper regard to policy 7.18B of the London Plan 2011

43. Miss Wigley submits that the officer's report misled the Council as to the effect and proper interpretation of policy 7.18B, by suggesting that it favoured the grant of planning permission, whereas on proper interpretation it was a factor weighing against such grant. She also submits that the officer's report misled the Council, in that it suggested that the second inspector's decision had relied upon the London Plan, without pointing out that there had been a material change in the relevant policy in that Plan after that decision from policy 3D.8 in the 2008 version of the Plan to policy 7.18B in the 2011 version.
44. I reject these submissions. A full and fair reading of the officer's report made it clear that policy 7.18B had been put in place after the second inspector's decision. The Council's planning committee were not misled on that point.
45. Miss Wigley argued that the officer's report did not come to any conclusion about whether the proposed development would comply with or be in conflict with policy 7.18B. This is an untenable argument. On a fair reading of the officer's report, it contained advice that the loss of open space would be outweighed by the community benefit of the retained open space being accessible for all "in pursuit of policy 7.18B of the London Plan" (see the Conclusion, set out above), and thereby indicated the officer's view that the development would comply with and promote that policy.
46. On the proper interpretation of policy 7.18B, the officer was entitled to advise and the Council was entitled to conclude that it was a factor in favour of the grant of planning permission. A salient feature of the Parochial Council's development proposal, as emphasised in both the first inspector's decision and the second inspector's decision, was that an area of about 1.4 hectares open space on private land, which was not open or available to the public, should be changed by the development so as to include an area of open space of about 0.69 hectares which would be open and accessible to the public. That feature of the development proposal was given special prominence because the second and third planning permission applications were refused on the ground that there was insufficient guarantee, by way of planning obligation on the Parochial Council, to ensure that the reduced area of open space would indeed be made available for public use. Fundamental to the recommendation in the officer's report and the decision of the Council to grant permission on the fourth application was that a more robust planning obligation to secure that end had been put in place.
47. A feature of the planning background which I should mention was that only part of the existing area of open space had been designated by the Council in its relevant plan as open space: the former tennis court area at the south of the Land (on which most of the proposed buildings were to be erected) had for some reason not been so designated, and so did not qualify as "local protected open spaces" for the purposes of policy 7.18B. The loss of protected open space was limited to the strip at the west of the Land which was also to be built upon.
48. The crucial point, however, is that the development would achieve the opening of the retained part of open space to the public in a practical and effective way for the first time. The officer and the Council were therefore, in my judgment, clearly entitled to take the view that "better quality provision" (the phrase used in policy 7.18B) in respect of open space would be achieved under the development proposal in a constrained urban environment, and hence to conclude that policy 7.18B pointed in favour of the grant of permission.

(ii) Failure to have proper regard to policy EP47 in the UDP

49. With reference to policy EP47, Miss Wigley submits that the Council failed to "understand the nature and extent of the departure from the plan which the grant of consent would involve in order to consider on a proper basis whether such a departure is justified by other material considerations", relying on Tesco Stores Ltd v Dundee City Council [2012] UKSC 13, in particular at para. [22].
50. I reject this submission as well. Both the first inspector's decision and the second inspector's decision had considered policy EP47 and had given a firm indication that the development proposal should be regarded as in the public interest, provided an adequate planning obligation could be put in place. A previous inspector's decision on a similar application for planning permission is itself a material consideration which a local planning authority should take into account: North Wiltshire DC v Secretary of State for the Environment [1992] JPL 955. The planning background of the first and second inspectors' decisions was a particularly strong material consideration for the Council, by reason of the very close similarity of the development proposal in each case, the carefully reasoned decision of each inspector which came to essentially the same conclusion on the basic planning merits of the development proposal and the fact that an appropriate and robust planning obligation had now been put into place. The officer's report drew the Council's attention to both the inspectors' decisions and to the difference of analysis between them regarding policy EP47, namely that the second inspector considered that the proposed development was in line with policy EP47 (by reference to the exceptions it allowed for) and that the first inspector considered that it departed from that policy, but the departure was justified by other material considerations. The report made very clear the relevant factors bearing upon the operation of policy EP47, and gave a full and fair overview of the position to members of the Council's planning committee.
51. In the event, on the analysis of the position given in the officer's report and in the reasons given by the Council in the "Informative" section of its decision, the Council took the view, in line with the first inspector's decision, that the development would be in conflict with policy EP47 but that there were material considerations which outweighed that conflict. The Council was fully entitled to reach this conclusion, and did so on a properly informed basis. This was a basis of decision more favourable to objectors to the scheme than the alternative (adopted by the second inspector), of concluding that there was no conflict with policy EP47. Mr Gibson can have no valid complaint that the Council proceeded on this view of the impact of EP47 more favourable to his position than had been adopted in the second inspector's decision.
52. There was nothing misleading in the officer's report about the effect of or reasoning in the first inspector's decision and the second inspector's decision. The officer's report gave a very full explanation of the position. It also gave a full and fair overview of the planning background and the relevant facts of the case on the basis of which the Council was able to understand clearly the extent of the conflict with policy EP47 (on the view of the case it came to) and was fully entitled to come to the conclusion it did on the planning merits.

(iii) Reliance on an alleged benefit of the proposal: availability for junior cricket

53. Miss Wigley makes the further submission that the Council erred in placing reliance on an alleged benefit of the proposal, namely that "the retained open space would be sufficient for junior cricket, again helping to open up this potential to the community at large," as stated in the officer's report. She contends that this assessment was based on an irrationally unsound conclusion in the second inspector's report; and, moreover, that the Council's assessment had failed to take into account Sport England's advice (in a letter dated 14 October 2011, subsequent to the second inspector's report) that "the proposed reduction of the playing area would compromise its use for sports pitches."
54. I reject this submission too. This is an objection about a conclusion reached by the second inspector on the evidence before him, as explained at paragraphs 12-14 of the second inspector's decision. There is nothing irrational in the inspector's assessment of the adequacy of the area for possible use for junior cricket. He had visited the site, considered the view of Sport England (available at the time of consideration of the third application) opposing the development and was well placed to make the assessment he did. Similarly, there was nothing irrational or unlawful in the Council placing reliance on that assessment in its consideration of the potential benefits of the proposed development.
55. There was no failure on the part of the Council to take into account the later letter from Sport England. The officer's report made detailed reference to Sport England's letter, which was available to Council members. The letter did not provide a detailed or reasoned account of any error in the second inspector's decision, and the Council was fully entitled to conclude that the assessment of this issue in the second inspector's decision remained valid. There had been no significant change in Sport England's position as between the third application for planning permission, as reviewed in detail by the second inspector, and the fourth application.

(iv) Alleged irrationality of the conclusion at paras. 15-16 of the second inspector's decision

56. Finally, Miss Wigley submitted that the reasoning in the second inspector's decision to the effect that the Land was essentially surplus to requirements so far as sports pitches were concerned, adopted in substance by the Council in its decision, was irrational. In my view, this is a hopeless contention. The careful reasoning in both the first inspector's decision and the second inspector's decision gives a full and adequate explanation in relation to the lack of compelling need to retain the Land as open space in its entirety for the purposes of provision for sport pitches.

Conclusion

57. For the reasons given above, this claim for judicial review is dismissed.