QUEEN'S BENCH DIVISION
1 Bridge Street West
Manchester M60 9 DJ
B e f o r e :
SITTING AS A JUDGE OF THE HIGH COURT
| THE QUEEN (on the application of PAUL HOUSIAUX)
|- and -
|STAFFORDSHIRE MOORLANDS DISTRICT COUNCIL
LAVER LEISURE LIMITED
Mr Hugh Richards (instructed by Legal & Election Services Staffordshire Moorlands District Council) for the Defendant
Mr Paul Tucker QC and Mr Killian Garvey (instructed by Irwin Mitchell LLP) for the Interested Party
Hearing dates: 20 July 2017
Crown Copyright ©
HH Judge Pelling QC:
"It is considered that within the area identified as Multi Activity Hub area on the submitted Parameters Plan the intensity of activity, the extent of built development (see indicative Schedule of Accommodation) and height of buildings (up to 12m in parts) would result in a development that was visually intrusive, particularly from the public footpath which runs directly to the west of this part of the site and in wider views from Eaves Lane to the north and from public footpaths to the west and east. It would fail to respond to and respect this small scale landscape which the Churnet Valley Landscape Character Assessment confirms to be particularly sensitive to change. Similarly the area identified as Black Plantation occupies an elevated location, visually and physically isolated from the remainder of the proposed development. In this location and notwithstanding the submitted Woodland Approach Notes setting out a proposed phasing approach to development within this woodland, it is considered that there is potential for development to be readily visible near the skyline in near and more distant views to the south. As such the proposal is in conflict with Polices DC3 and SS7 of the Adopted Core Strategy Development Plan Document, the Adopted Churnet Valley Masterplan SPD and the National Planning Policy Framework which seeks to protect and enhance valued landscapes."
The second ground concerned traffic and it too focussed on two issues –
"The traffic generated from the proposed leisure development comprising up to 250 holiday lodges together with traffic generated from day visitors to the proposed leisure facilities would result in a significant increase in the amount of traffic accessing the surrounding rural road network and particularly Eaves Lane/ Carr Bank to the east of the site access which would provide a direct route from the development to Alton Towers and Farley Lane which links Oakamoor and Farley. It is considered that the increase in traffic would lead to unacceptable congestion on these narrow country roads. Carr Bank, for example is largely single track with limited passing places and a steep gradient as the road enters the village of Oakamoor. Although there is an offer to agree a signage scheme, an intention to run a shuttle bus to Alton Towers as part of a Travel Plan to be secured by way of planning obligation and improve the A52/Whiston Eaves junction, these measures would not prevent guests using the aforementioned rural routes. Furthermore guests from Black Plantation will be heavily reliant upon the car to access all facilities within the Hub area via the wider rural highway network given that it is physically detached and remote from the main venue with no pedestrian connectivity provided due to the change in levels in this area. It is for these reasons that it is considered that traffic from the proposal will not be satisfactorily accommodated on the highway network and that the proposal fails to provide and /or encourage satisfactorily the use of sustainable travel modes contrary to Policy T1 of the Adopted Core Strategy Development Plan Document."
The third ground was concerned with adverse impact on Little Eaves Farm and on the views of across the Churnet Valley. The fourth was a planning judgment to the effect that the benefits of the scheme did not outweigh the harm identified in the first to third grounds for refusing the application. The Interested Party has appealed from that refusal.
"The main changes between this application and the previous submission, SMD/2014/0682 are as follows: -
1. The Parameter Plan now identifies within the Multi Activity Hub Area various zones within which buildings will be sited and gives maximum heights for these buildings. Reference to buildings within this area having a height of up to 12m has been removed. The zone for the Main hub building and Visitor centre refers to a maximum height for buildings of up to 6m above finished floor level (FFL).
2. The area in which the Main hub building and visitor centre can be located has been reduced (see Parameters Plan)
3. Additional landscaping is shown illustratively within the Hub area (see Illustrative Landscape Detailed Plan - The Hub)
4. The 14 lodges proposed at Black Plantation and the proposed vehicular access from Blackley Lane have been removed. Whilst both the land at Black Plantation and Blakeley Lane remain within the site edged red, Black Plantation is shown as "Existing Woodland to be Retained" on the Parameter Plan;
5. The total number of lodges for which planning permission is sought as part of this application re-submission remains at up to 250 lodges. The 14 lodges removed from Black Plantation have been re-distributed within Quarry 2, The Upper Lakes (see Parameter Plan and the Illustrative Detail Plan – Upper Lakes)
6. A "no right turn" vehicular access arrangement is proposed onto Eaves Lane.
The revised vehicular access design is shown on the Eaves Lane Access Plan
7. A Tunnel Stability Report is provided
8. Further detail has been provided to clarify the alignment of the proposed footpaths, cycleways and bridleways at the site. This detail is provided on the Detailed Footpath Connection Plans and the Overall Footpath Connection Plan."
In relation to Item 6, the report added:
"7. In the previous application, Members raised significant concern about the amount of traffic that would be generated by the development and accessing the surrounding road network. Particular concern was raised with regard to Eaves Lane/ Carr Bank to the east of the site access which would provide a direct route from the development to Alton Towers and Farley Lane. It formed one of the reasons for refusal of that application. The applicants have sought to address this concern in this revised application by providing for a 'no right turn' out of the site. This would be achieved by the introduction of a traffic island on the site access road which would physically prevent visitors and staff from turning right out of the site towards Carr Bank and Alton Towers. (see Drawing PB5196-0100A) These works are the subject of a separate planning application (SMD/2016/ 0388) which is considered elsewhere on the Agenda. Off-site improvements to the Whiston Eaves Lane/A52 junction are also proposed. Visibility at this junction is currently substandard. Works involve the provision of a no right turn facility into Whiston Eaves Lane when travelling from the west, increased visibility to the west and traffic calming measures. The works associated with the right turn and improved visibility are shown on drawing PB 1608-SK001C."
"What I am suggesting there is, in light of some of the comments this morning is that we actually ask for a scheme to be submitted and approved by us so that we can look more closely at the traffic island to make sure that vehicles can't go over that and then for it to be implemented prior to occupation."
The reference to "this morning" was to a visit to the Site by the LPA committee members and Ms Curley. It is clear from the Minutes of the LPA Committee that residents expressed concern about traffic using Carr Bank for site access and egress. It was this issue that led to the rejection of the initial application at least in part.
"23. The development hereby permitted shall not be brought into use until such time that details (including signage and road markings) of the works to realign the main site access on Eaves Lane, indicated on drawing no PB 5196-0100 Rev C hereby approved, so as to prohibit vehicles from turning right out of the site into Carr Bank Lane have been submitted to and approved in writing by the Local Planning Authority. The highways works shall be completed in accordance with the approved details and shall thereafter be retained for the life of the development.
Reason:- To comply with the policies contained within the National Planning Policy Framework, the principles contained within Manual for Streets and Policies contained within the Staffordshire Moorlands Core Strategy Development Plan 2014."
Drawing no PB 5196-0100 Rev C is reproduced at Appendix 2. A copy of the relevant part of this drawing is reproduced at Appendix 2.
"5.4 The application is supported by a Transport Statement (TS). This confirms that surveys undertaken in May 2016 have demonstrated that the existing site access junction is lightly trafficked and that there is no capacity issue associated with the operation of the junction either as existing or if the proposed improvement were implemented. Although not directly relevant to the consideration of this application, the TS has tested the impact of the leisure scheme proposed on the Moneystone site (submitted under SMD./2016/0378 and to be considered elsewhere on this Agenda) on this junction which shows that, based on the projected 2020 traffic flows, in capacity terms the proposed site access junction is shown to operate satisfactorily.
5.5 The Local Highway Authority have carefully considered the application and submitted TS. They agree with its conclusions and raise no objection to the application. There are as such no objections to the application on highway safety and access grounds and proposal accords with Policy T1 of the Core Strategy and advice in the NPPF."
"1. The proposal in isolation would be likely to lead to unsafe manoeuvres on the public highway and be likely to worsen highway safety in the locality contrary to policies DC1 - Design Considerations and T1 - Development and Sustainable Transport of the Staffordshire Moorlands Core Strategy
1. The Local Planning Authority (LPA), in reaching this decision, has followed the guidance in paragraphs 186 and 187 of the National Planning Policy Framework. The Framework advises that the LPA should work proactively with applicants to secure developments that improve the economic, social and environmental conditions of the area. Despite advice it has not been possible to negotiate a form of development which overcomes the environmental and social harm referred to above."
The minutes for the LPA meeting at which this decision was taken record that the committee was advised that the LPA was obliged to determine each application on its own merits, that the application should be determined on its merits as a stand-alone scheme and that the LPA decided to refuse the application because the proposal "… in isolation would be likely to lead to unsafe manoeuvres on the public highway and be likely to worsen highway safety in the locality". This outcome was proposed by the councillor who had voted against giving approval for the revised Scheme but was seconded by the councillor who had proposed the resolution approving the revised Scheme. It is clear from the minutes that some of the councillors were confused by why the application was being made at all given the terms of the revised Scheme application – see Bundle p.894 – and others were not persuaded that the Junction Scheme as designed would achieve what was intended or needed further work before approval - see by way of example the Minutes at Bundle, page 897 and Ms Curley's comments at Bundle, page 899. This thinking was consistent with that which had led to Condition 23 in relation to the revised Scheme.
(1) Ground 1 – the No Right Turn Ground, which breaks down into two assertions being (a) that it was irrational for the LPA to grant consent for the revised Scheme subject to a condition that its subsequent decision in relation to the Junction Scheme application shows it considered to be ineffective to address the previous objections concerning this issue and (b) failed to give reasons explaining the inconsistency between the two decisions; and
(2) Ground 2 – the Sustainable Transport Ground, which in summary concerns what is alleged to be a failure to give adequate reasons to explain why this was no longer considered a valid reason for refusal given that it had been one of the reasons for refusing on the original application for approval for the Scheme.
Irrationality and Material Considerations
"… a local planning authority is an administrative body, determining an individual application for planning permission. Its reasons ought to state why planning permission was granted, usually by reference to the relevant planning policies. But it is not conducting formal adjudication in a dispute between an applicant … and objectors and so it is not required to give reasons for rejecting representations made by those who object … I … consider that it would be unduly onerous to impose a duty to give detailed reasons … where a local planning committee gives reasons for a grant of planning permission kit need only summarise the main reasons for the decision and can do so briefly. The committee is not required to set out each step in its reasoning nor indicate which factual matters are accepted or rejected …"
Where a committee departs from the officer's recommendations, some explanation for doing so is required – see R v. Mendip DC  80 P&CR 500 – but there is no reason why a committee that acts in accordance with an officer's advice should have to do any more than say that is what they have done. Indeed, where a decision by a committee accords with the recommendation of an officer, the court is likely to infer that the committee has done as it has for the reasons identified in the report – see Lawrence v. Fen Tigers Limited  UKSC 13. Such reports are themselves to be read in a common-sense way bearing in mind that they are addressed to decision makers who have or are expected to have extensive local and background knowledge – see Oxton Farms v. Selby DC  EG 60 and R (Siraj) v. Kirklees MC  EWCA Civ 1286.
"In summary and not surprisingly, the TA concludes that traffic is expected to increase on the local roads around the site. The percentage increases set out above are all noted in the TA to be from relatively low baseline traffic flows. These increases have been considered against a set of traffic capacity significance criteria in the TA. The operational capacity assessment (which includes consideration of driver delay) of both of these junctions using the significance criteria concludes that the application is expected to have low operational impact on these junctions. To help mitigate the impact of trips caused by the development a Travel Plan Framework (TPF) and Travel Plan (TP) accompany the TA and include a number of measures that will encourage travel by non car modes (staff car share, cycle storage, Alton Towers bus for example). With these measures, the residual impact is predicted to be Minor Adverse in respect of the impact on traffic flows and a Negligible impact on driver delay. In respect of pedestrian delay and amenity, pedestrian severance, accidents and safety the residual impact is predicted to range form negligible to minor beneficial. The TA notes that although the existing A52/Whiston Eaves Lane junction could cater for the additional traffic demand in capacity terms, highway works are proposed at the junction to accommodate a right turn facility and increase the visibility splay to the west. The highway works are aimed at improving the existing sub-standard layout in highway safety terms (para 7.5.4)."
The Local Highway Authority had no objection to the revised Scheme "subject to conditions relating to details of the precise layout, off-site junction improvements at Whiston Eaves Lane/A52, implementation of a Travel Plan, off-site traffic management incorporating directional signage, a scheme showing pedestrian and cycle connections and submission of a Construction Management Plan". The officer added at paragraph 15 of the Report that:
"The LHA advise that although no objection was raised to the previous application on highway grounds, this application has sort to introduce additional measures which may impact on the highway, including improvements to the existing site access to prohibit the right turn out of the site onto Eaves Lane and removal of Blakeley Lane to service part of the development. The vehicular traffic previously assigned to Blakeley Lane has now been assigned to Eaves lane. The LHA conclude by saying that the modelling in the TA of the access junctions and surrounding network shows that they will operate within their practical capacity. The existing access to the development from the A52 will be upgraded and different proposals for this improvement have been considered. It is also considered that transport mitigation measures can be secured through the TPF. It is for these reasons that the LHA raise no objection subject to conditions and a Section 106 Agreement to secure a contribution of £11 000 towards the monitoring of the Travel Plan and £5 000 in the event that a Traffic Regulation Order is pursued for speed reduction on the A52."
When considering the initial application, the LPA had been concerned about the effect on traffic flows of lodges built in the Black Plantation area of the Site. This issue ceased to be relevant because the revised Scheme did not involve any lodges being built in that area.